Thursday, May 21, 2015

Thrilla In Viera

The ABA Journal has a report on proposed sanctions recommended against a Florida judge by the Judicial Qualifications Commission.

The sanction of a small fine is based on an courthouse hallway confrontation between the judge and a public defender.

The commission found insufficient evidence that the judge punched the public defender in the face but seems to believe that the face was, as they say, punch-worthy

Substantial evidence was offered to the effect that Mr. Weinstock was generally rude, disrespectful, incompetent and a highly unlikeable lawyer.

As to the well-respected judge

Many who observed the June 2, 2014, incident were unable to explain why Judge Murphy became so angry. Judge Murphy’s therapist, Michael Ronsisvalle, testified that Judge Murphy has a strong self-preservation mode that is compulsive, and that, related to his service in the military, Judge Murphy reflects that compulsion onto other people, feeling the undeniable need to protect them, too. In addition to this predisposition to self-preserve and to protect others, Judge Murphy was emotionally affected by the shooting of a defendant in front of the Viera Courthouse just months before the June 2, 2014, incident. Shortly after that, Judge Murphy lost his father. In the three weeks immediately preceding the June 2, 2014 incident, Judge Murphy was away from home for 17 days. The last week of his absence from the Courthouse was spent at a Drug and Veteran’s Court Conference in California. Upon his return to Florida the evening of June 1, 2014, he and his wife hosted guests for a dinner party in their home. Dr. Ronsisvalle described this confluence of events as "a perfect storm" that drained Judge Murphy of emotional energy to cope with Mr. Weinstock on June 2, 2014.

In sum

The altercation between Weinstock and Judge Murphy created a remarkable national embarrassment for not only the judiciary of the State of Florida, but for its citizens as well. Statewide and national newspaper and television media reported the public and violent confrontation between a presiding Judge who actually left the bench after saying he would "beat your ass" in the midst of a judicial proceeding, and the Assistant Public Defender who had defied and disrespected the Judge.

The public defender had "some ownership" of the incident. He has resigned from the public defender's office. (Mike Frisch)

May 21, 2015 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 19, 2015

Judicial Campaign "Misquote" Sanctionable

The Illinois Review Board has rejected a First Amendment challenge and recommended a censure of a judicial candidate for statements made in the campaign.

In 2012, Respondent ran for the office of Circuit  Judge in the 20th Judicial Circuit. His opponent was Associate Judge  Vincent J. Lopinot. At first he planned to run a positive campaign. However, he  learned that Judge Lopinot's campaign was allegedly considering turning to  negative tactics by publishing an article against Respondent about a prior  charge of an "offensive battery". Respondent had read the Seventh Circuit  opinion in Woidtke v. St. Clair County, id. He then, along with  his campaign manager, decided to respond by sending out a flyer that contained  the following language:

Rodney Woidtke spent 12 years in prison for a murder HE DID NOT COMMIT. (Source: People v. Woidtke, No. 5-99-0331, 5th District, 26 April  2000)

Because ?.

Supervising Public Defender VINCENT J. LOPINOT and his Assistant, Brian  Trentman, "were NEGLIGENT in the representation of Mr. Woidtke in a 1989  criminal proceeding that resulted in his wrongful conviction of  murder of Audrey Cardenas." (Source: Woidtke v. St. Clair County, St. Clair  County Public Defenders Office, Brian K. Trentman and Vincent Lopinot, No.  02-4223, May 2003)

Next to the above statement, Respondent placed a  picture of Lopinot with the word "NEGLIGENT" in white with a red background  underneath the picture. Respondent sent the flyer to 75,000 to 100,000 people.  Despite the mailing of the flyer, Respondent lost the election to Judge Lopinot.

The above language was taken from the Seventh  Circuit opinion but was not an accurate quotation. The opinion actually read in  the opening paragraphs of the opinion, "In Count I, Mr. Woidtke alleged that  Attorney Trentman and his supervisor, Attorney Judge Lopinot, had been negligent  in their representation of Mr. Woidtke in a 1989 criminal proceeding that  resulted in his conviction." Respondent does not deny that he misquoted the  Seventh Circuit opinion.

The Board

We conclude that the Hearing Board's finding that  Respondent intentionally made the false statement in the flyer is not against  the manifest weight of the evidence. Respondent admitted that he assisted in  designing and writing the contents of the mailer and that he approved its design  and contents. Respondent admitted at hearing that he reviewed the various court  opinions regarding the Woidtke matter prior to completing the mailer. He did not  act in haste. The Hearing Board rejected Respondent's testimony that he believed  the mailer accurately quoted the Seventh Circuit opinion as "incredible and  false." Respondent had no objective information from which he could have  concluded that Lopinot supervised Trentman in regard to the Woidtke case. The  Hearing Board, who had the benefit of listening to the witnesses, concluded  Respondent deliberately and intentionally changed the language of the quotation  to create a false impression. The evidence supports this finding.

The Board found that recent U.S. Supreme Court precedent supported its First Amendment position

Respondent argues that Rules 8.2(a), 8.2(b) and  8.4(c) are unconstitutional as applied to his conduct. He contends that his  statements constitute political speech and are protected by the First Amendment  even if the statements are knowingly false. We disagree. Respondent has failed  to direct our attention to any cases which have concluded that all statements  made during a judicial, or any other, election, regardless of their truth or  falsity, are protected speech under the First Amendment to the United States  Constitution or any State Constitution.

The United States Supreme Court has never ruled  Rules 8.2(a), 8.2(b) or 8.4(c) unconstitutional. Similarly, the United States Supreme Court has never held that knowingly  false statements by a judicial candidate against an opponent have First  Amendment protection. Even in the most recent case cited by Respondent, United States v. Alvarez, 567 U.S. ___, 132 S.Ct. 2537 (2012), the  Supreme Court pointed out that there are situations in which knowingly or  recklessly made false statements are not protected under the First Amendment,  citing Garrison v. Louisiana, 379 U.S. 64 (1964) where an appellate  district attorney was convicted of defamation for making disparaging statements  about the judiciary. See also, Williams-Yulee v. The Florida Bar, 575  U.S. ___ (2015)(Court found that a Florida rule prohibiting judicial candidates  from personally soliciting campaign contributions did  not violate the First Amendment given the State's interest in preserving the  integrity of the judiciary).

(Mike Frisch)

May 19, 2015 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Friday, May 15, 2015

The Shadow

The Cranston (Rhode Island) Patch has this recent report on criminal charges against a judge

A Cranston Municipal Court Judge and lawyer was arrested by East Greenwich Police on Monday for an alleged domestic altercation in their town.

Thomas Ricci, 51, was arraigned today in Third Division District Court on charges of domestic simple assault and domestic disorderly conduct and released on personal recognizance, court records show.

NBC10 reported Ricci beat and strangled the woman after she confronted him over text messages she found on his phone.

Ricci has served as Senior Associate Judge in Cranston Municipal Court since 2007.

He has also served on the Rhode Island Supreme Court Disciplinary Board, the state Coastal Resource Management Council and Warwick’s Judicial Selection Committee.

He is due to return to court on June 5 for a pretrial conference.

For those interested in recent cases of Rhode Island attorney discipline, GoLocalProv has this article titled Booze, Bribes, And Conspiracy. (Mike Frisch)

May 15, 2015 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Monday, May 11, 2015

Contrary To Popular Belief

The Tennessee Court of Appeals has affirmed the denial of a motion to recuse the trial judge in an accident case.

There was an interesting plaintiff

This Health Care Liability action arose from an incident in which Richard Williams slipped and fell in the parking lot of a restaurant in Memphis. Mr. Williams was seventy-nine years old at the time of the fall. Mr. Williams is a former television and radio personality, who became a local celebrity as a magician performing magic tricks on a local television show, which aired on WMC-TV, the NBC-affiliate in Memphis, from 1966 until 1989. Magicland, Mr. Williams‘ magic show for children, was televised every week for a half-hour before a live studio audience. Mr. Williams, known to his fans as "Mr. Magic," holds a world record for hosting the longest running television magic show.

After Mr. Williams‘ fall, he was treated at St. Francis Hospital for a fractured hip. After a recovery period in the hospital, Mr. Williams was admitted to Appellant HealthSouth Rehabilitation Hospital North ("HealthSouth"). On his admission to HealthSouth, a nurse performed an initial assessment, spending approximately twenty minutes with Mr. Williams. The nurse oriented Mr. Williams to his room and left him to rest. Approximately forty-five minutes later, Mr. Williams was found on the floor, having fallen from his bed...

Plaintiffs claimed that Mr. Williams should have been restrained due to his allegedly confused state and further alleged that Mr. Williams‘ current dementia and Alzheimer‘s disease were caused by the fall at HealthSouth.

The recusal issue related to a video of Mr. Magic's life that the judge found "charming" and commented

Well, I must say that what we‘ve just seen is an incredibly charming presentation. And I would be less than honest if I didn‘t indicate that at this very moment, I am overcome with emotion. And during the playing, I noticed that Ms. Rezba particularly was having a more difficult time than even I am. I want to take a break to collect myself.

The judge's expressions did not create a basis to recuse

Contrary to popular belief, judges are human and, as such, have feelings and emotions. As set out in context above, Judge Russell concedes as much in his statements from the bench. However, the mere fact that a judge may feel emotion or may sympathize with a party does not, ipso facto, mean that he or she cannot be unbiased. It is the judge‘s bias (actual or perceived), and not his or her emotion, that drives the inquiry of whether recusal is warranted. Generally, the terms "bias" and "prejudice" refer to a state of mind or attitude that works to predispose a judge for or against a party... 

HealthSouth‘s primary basis for its motion for recusal was the argument that, because Judge Russell showed emotion after watching the video, he would be partial to Plaintiffs in acting as Thirteenth Juror. In the first instance, the alleged bias in this case arises from events or observations that occurred during the litigation of the case; accordingly, in order to justify Judge Russell‘s recusal, HealthSouth would have to show that the ―bias is so pervasive that it is sufficient to deny‖ a fair trial. Here, HealthSouth won its case, receiving a unanimous verdict from the jury. The motion for recusal was filed before Judge Russell actually acted in his capacity as Thirteenth Juror to review the jury‘s verdict. Therefore, when HealthSouth filed this Rule 10B appeal, Judge Russell had neither reached a "prejudged conclusion because of interest, partiality, or favor," Bean, 280 S.W.3d at 803, nor had he rendered "an opinion on the merits on some basis other than what the judge learned from participation in the case." Alley, 882 S.W.2d at 821. In short, HealthSouth has failed to meet its burden to show the type of pervasive bias that would warrant Judge Russell‘s recusal.

(Mike Frisch)

May 11, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 6, 2015

Mortgagor Rhymes With Poor

An opinion from the South Carolina Advisory Committee on Standards of Judicial Conduct

ADVISORY  COMMITTEE ON STANDARDS OF  JUDICIAL CONDUCT
  OPINION NO. 2-2015

RE:      Whether a Family Court judge is required to include another  attorney’s assumption of judge’s mortgage payments on judge’s disclosure  statement.

FACTS

Prior to being  elected, a Family Court judge had an office sharing situation with Lawyer #1  and Lawyer #2, in a building owned by the judge and Lawyer #1.  The judge agreed that if the judge was  elected to the family court bench, the judge’s interest in the building would  be transferred to Lawyer #2, who would then assume the judge’s portion of the  mortgage debt.  After being elected, the Judge  learned from the bank that the mortgage was not assumable and that Lawyers #1  and #2 would have to re-finance the debt.   Because of some complications arising from Lawyer #1’s financial and tax  circumstance, the re-finance could not take place.  Since the judge’s election approximately 3  years ago, the judge has tried diligently to divest the judge’s interest in the  building, but the transfer has not yet taken place. 
  Since the election, the judge has  not paid any mortgage payments or monthly expenses (except for property taxes  for the year the judge was elected, where the judge actually practiced in the  building for 6 months prior to election).  The judge has not received any rent from  Lawyer #2 or any tenant in the building. The judge has raised the issue of  whether the Judge needs to report the monthly mortgage debt that has been paid  by Lawyer #2 as income, as it may be considered that the judge is renting the  judge’s portion of the property to Lawyer #2, who pays the judge’s portion of  the mortgage as rent.  The judge’s  accountant has not claimed any income from the building or deductions from the  mortgage debt. 

CONCLUSION

A family court judge does not need to report  another party’s assumption of mortgage payments on property owned by judge as  income on the judge’s disclosure statement, but the judge should disclose the  mortgage debt in judge’s name.

Because

The judge is  not receiving money for services rendered or monetary payments for rent.  Lawyer #2 has effectively (albeit informally)  assumed the mortgage, but the judge receives no money or rent, and does not  claim the mortgage as a tax deduction.  Thus,  the judge is not required to report Lawyer’s #2’s payment of the mortgage as  income on the judge’s disclosure statement. The judge should, however, disclose  the existence of the mortgage in judge’s name and provide an explanation of  Lawyer #2’s assumption of mortgage payments.

The title to the post honors my late friend Professor Steve Goldberg, who liked that easy-to-understand explanation of who was who in the mortgagor-mortgagee relationship. (Mike Frisch)

May 6, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 29, 2015

Divided Supreme Court Upholds Florida Ban On Judicial Election Solicitations By Candidates

The United States Supreme Court has upheld a Florida ban on judicial candidates personally seeking campaign contributions.

The majority opinion of the Chief Justice makes clear the distinction between judicial and other elections.

Our Founders vested authority to appoint federal judges in the President, with the advice and consent of the Senate, and entrusted those judges to hold their offices during good behavior. The Constitution permits States to make a different choice, and most of them have done so. In 39 States, voters elect trial or appellate judges at the polls. In an effort to preserve public confidence in the integrityof their judiciaries, many of those States prohibit judges and judicial candidates from personally soliciting funds for their campaigns. We must decide whether the First Amendment permits such restrictions on speech.

We hold that it does. Judges are not politicians, even when they come to the bench by way of the ballot. And a State’s decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office. A State may assure its people that judges will apply the law without fear or favor—and without having personally asked anyone for money. We affirm the judgment of the Florida Supreme Court...

The desirability of judicial elections is a question that has sparked disagreement for more than 200 years. Hamilton believed that appointing judges to positions with lifetenure constituted "the best expedient which can be devised in any government to secure a steady, upright, and impartial administration of the laws." The Federalist No. 78, at 465. Jefferson thought that making judges "dependent on none but themselves" ran counter to the principle of "a government founded on the public will." 12 The Works of Thomas Jefferson 5 (P. Ford ed. 1905). The federal courts reflect the view of Hamilton; most States have sided with Jefferson. Both methods have given ourNation jurists of wisdom and rectitude who have devotedthemselves to maintaining "the public’s respect . . . and a reserve of public goodwill, without becoming subservientto public opinion." Rehnquist, Judicial Independence, 38U. Rich. L. Rev. 579, 596 (2004).

It is not our place to resolve this enduring debate. Our limited task is to apply the Constitution to the question presented in this case. Judicial candidates have a First Amendment right to speak in support of their campaigns. States have a compelling interest in preserving public confidence in their judiciaries. When the State adopts a narrowly tailored restriction like the one at issue here, those principles do not conflict. A State’s decision to elect judges does not compel it to compromise public confidence in their integrity

Dissenting Justice Scalia takes the majority to task for what he calls "twistification" of the First Amendment

This Court has not been shy to enforce the First Amendment in recent Terms—even in cases that do not involve election speech. It has accorded robust protectionto depictions of animal torture, sale of violent video gamesto children, and lies about having won military medals. See United States v. Stevens, 559 U. S. 460 (2010); Entertainment Merchants, 564 U. S. ___; Alvarez, 567 U. S. ___. Who would have thought that the same Court would today exert such heroic efforts to save so plain an abridgement ofthe freedom of speech? It is no great mystery what isgoing on here. The judges of this Court, like the judges of the Supreme Court of Florida who promulgated Canon 7C(1), evidently consider the preservation of public respect for the courts a policy objective of the highest order. So it is—but so too are preventing animal torture, protectingthe innocence of children, and honoring valiant soldiers. The Court did not relax the Constitution’s guarantee of freedom of speech when legislatures pursued those goals; it should not relax the guarantee when the Supreme Court of Florida pursues this one. The First Amendment is not abridged for the benefit of the Brotherhood of the Robe. I respectfully dissent.

 Justices Thomas joined the Scalia dissent. Justices Alito and Kennedy also wrote dissents. (Mike Frisch)

April 29, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Monday, April 20, 2015

Those Who Judge Can't Teach

The Florida Judicial Ethics Advisory Committee opines negatively on a judge's proposal to teach at his former law firm

May a judge give  an educational presentation to the summer law clerks of the judge’s former law  firm?

ANSWER: No

Reasoning

In  Florida Judicial Ethics Advisory Opinion 2003-03, the Committee opined that  judges could not participate in a law firm's litigation program by presiding  over mock trials at a law firm’s training retreat to be held at a local resort.  The judges were invited to preside over a one-day mock trial and critique and  give instruction to the firm's associates in an effort to improve their trial  techniques. The law firm offered to pay for the room and meals of the judges  who participated in the retreat. Unlike the judges in Florida Judicial Ethics  Advisory Opinion 2003-03 who would receive room and meals at a resort for their  participation in a law firm's educational program, the Inquiring Judge would  not receive compensation directly or indirectly for making a presentation to  the law firm's law clerks. However, the reasoning in Florida Judicial Ethics  Advisory Opinion 2003-03 nevertheless applies.

Canon 4 of the Code of Judicial  Conduct encourages judges to engage in activities to improve the law, the legal  system, and the administration of justice. Canon 4B specifies that judges are  encouraged “to speak, write, lecture, teach and participate in other quasi-judicial  activities concerning the law, the legal system, the administration of justice,  and the role of the judiciary as an independent branch within our system of  government.”

The  Commentary to Canon 4B suggests that because judges are learned in the law,  they are in a unique position to contribute to educational endeavors. Consequently,  there are numerous Florida Judicial Ethics Advisory Committee opinions that  have permitted judges to engage in law related teaching activities. See Fla. JEAC Ops. 75-28 (justice may teach at a law school); 81-3 (judge may teach  business law at a university); 87-3 (judge may participate in a legal seminar  sponsored by a private law firm in conjunction with the Academy of Florida  Trial Lawyers and University of West Florida); 92-29 (judge may sponsor and organize seminars for attorneys); 08-21 (judge may teach an educational/trial skills course at a Dependency Court  Improvement Summit sponsored by the Department of Children and Families); 10-27 (judge may present a seminar for attorneys on suggestions and anecdotes about  how to present a case to a judge that would be posted on the judge’s circuit’s  website). However, no Florida Judicial Ethics Advisory Committee opinion has  approved of a judge giving a private educational presentation to one law firm.

Canon  2 of the Code of Judicial Conduct is titled “A Judge Shall Avoid Impropriety  and the Appearance of Impropriety in all of the Judge’s Activities.” Canon 2A requires a judge to “act at all  times in a manner that promotes public confidence in the integrity and  impartiality of the judiciary.” Canon 2B  prohibits a judge from lending “the prestige of judicial office to advance the  private interests of the judge or others” or permitting others “to convey the  impression that they are in a special position to influence the judge.” Canon  4A(1) provides that a judge shall conduct all of the judge's quasi-judicial  activities so that they do not “cast reasonable doubt on the judge's capacity  to act impartially as a judge.”

Giving  practice “tips” at just one law firm violates the prohibitions set forth in  these judicial canons. Certainly, other law firms and lawyers not associated  with the firm where a judge is giving the presentation, as well as the public  might legitimately believe that the judge has a special relationship with that  particular law firm. Therefore, a reasonable person may question the judge’s  impartiality as it relates to that law firm.

In  addition, the presentation requested will be to the judge’s former law firm. A  judge should take steps to avoid conduct that requires disqualification in  matters that would come before the judge. It is customary for a judge to wait  one or two years after becoming a judge before presiding over the judge’s  former law firm’s cases. This customary wait period assumes that the judge has  no financial ties to the law firm at the end of the wait period and the matter  before the judge is not a case that the judge’s former law firm undertook  representation while the judge was a member of the firm. See Fla. Code Jud. Conduct, Canon 3E(1)(b); Fla. JEAC Ops. 93-19 and 04-06. Giving an educational presentation to the summer law clerks of the  judge’s former law firm gives the appearance that the Inquiring Judge is  maintaining close ties with that firm, which in turn may result in motions to  disqualify the judge.

The  Inquiring Judge has indicated that the Judge would make the same educational  opportunities open to any law firm that requested such a presentation. This is  a laudable but unrealistic position. Canon 3A states that “[t]he judicial  duties of a judge take precedence over all the judge’s other activities.” Canon 3B(8) states that a “judge shall  dispose of all judicial matters promptly, efficiently, and fairly.” The  Commentary to Canon 3B(8) states that the “[p]rompt disposition of the court’s  business requires a judge to devote adequate time to judicial duties” and to be  “expeditious in determining matters under submission. . . .”

Canon  4A(4) requires a judge to “conduct all  of the judge’s quasi-judicial activities so that they do not...interfere with  the proper performance of judicial duties.” Once the Inquiring Judge makes a  presentation to one law firm’s summer clerks, then the Judge has burdened the  Judge’s schedule with the commitment to make similar presentations to an untold  number of other law firms. This obligation certainly could affect the judge’s  ability to comply with Canons 3A, 3B(8) and 4A(4).

For  the reasons set forth herein, the Committee, with one dissent, opines that the  Inquiring Judge should not make a private educational presentation to the  Judge’s former law firm or to any other one law firm.

(Mike Frisch)

April 20, 2015 in Judicial Ethics and the Courts | Permalink | Comments (1) | TrackBack (0)

Flying High In West Virginia

ABC has this story raising allegations against a justice of the West Virginia Supreme Court of Appeals

 A West Virginia businessman has filed a formal complaint against state Supreme Court Justice Robin Jean Davis with the state’s Judicial Investigation Commission, alleging she had a conflict of interest with a lawyer who bought a jet from her husband as he prepared to argue a $90 million case before her.

“The fact is, an attorney appearing before Justice Davis with a $90 million judgment in hand paid some $1.3 million to the Segal-Davis family, clearly creating a perception that the Justice’s ability to hear the case with complete impartiality could have been impaired,” wrote Bill Maloney, a Republican coal industry veteran from Morgantown who ran unsuccessfully for governor and now runs a conservative think tank.

The complaint is the latest challenge to Davis, the state court’s senior justice, following an ABC News investigation that discovered a lawyer appearing before her had purchased a Learjet from Alpine Air, the holding company solely owned by Davis’s husband, Scott Segal. The airplane sale took place just weeks after the Mississippi lawyer, Michael J. Fuller, had won a $90 million judgment for a client who was suing a nursing home for helping cause the death of his elderly mother. Davis found for Fuller’s client in the appeal and wrote the majority opinion in the decision that cut the award by $40 million but enabled Fuller to collect a $17 million fee. Maloney is not involved in the nursing home case, but in a statement indicated he filed the new complaint because he’s interested in protecting the reputation of the state’s judicial system so as to not scare off economic investments for the state.

Earlier ABC coverage is linked here. (Mike Frisch)

April 20, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 15, 2015

There Goes The Judge

The Ohio Supreme Court has suspended a judge as a result of a felony conviction.

The Bellfontaine Examiner reported his resignation

An Ohio judge has resigned after a jury found him guilty of tampering with records and other charges for not disclosing his ownership interest in a Lorain office building where several lawyers have legal practices.

Lorain County Common Pleas Judge James Burge submitted his letter of resignation Tuesday to Ohio Gov. John Kasich. Burge was convicted last week.

He'd been disqualified from serving as a judge since his September indictment.

A spokesman for Kasich says the governor's office will ask the county's Republican Party for recommendations to replace Burge, a Democrat.

Burge took the bench in 2007 after years as a defense attorney. He tells The Chronicle-Telegram (http://bit.ly/1b2EWTC ) in Elyria that his resignation was a tough way to end a career in law.

(Mike Frisch)

April 15, 2015 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 14, 2015

Father Of The Clerk

A recent opinion from the South Carolina Advisory Committee on Standards of Judicial Conduct

ADVISORY  COMMITTEE ON STANDARDS OF  JUDICIAL CONDUCT
  OPINION NO. 1-2015

RE: Propriety  of a circuit court judge presiding over matters in which the judge’s law  clerk’s father and his partner frequently appear before the circuit court.

FACTS

A circuit court  judge has expressed interest in hiring a law clerk for the 2016-2017 year.  The potential law clerk’s father is an  attorney who frequently appears in the judge’s court in both civil and criminal  cases, as does the father’s law partner. The judge inquires as to whether the  judge can preside over matters in which a law clerk’s father or his law partner  appears. 

CONCLUSION

A circuit court judge need  not automatically disqualify himself or herself from a proceeding in which the attorney  appearing before the judge is the father of the judge’s law clerk or the  father’s law partner.  

OPINION

Canon 3.E.(1)(d)  states that a judge should disqualify himself or herself where the judge’s  impartiality might reasonably be questioned,  including where “the judge’s spouse or person within the third degree of  relationship to either of them, or the spouse of that person” is an attorney in  the proceeding or is a material witness in the proceeding.  In addition, Canons 1 and 2 of the Code of  Judicial Conduct require a judge to avoid the appearance of impropriety and act  in a manner to promote the public’s confidence in the integrity and  impartiality of the judiciary.

In  Opinion 10-2011, this Committee considered Canon 3E in determining the propriety of a Circuit  Court Judge presiding where the law clerk’s uncle was the senior prosecuting  solicitor.  We determined that while such  a relationship could create the appearance of impropriety, this appearance of  impropriety does not exist for uncontested and default matters, and thus the  possibility of disqualification only arose in contested cases.  However, we also found that disqualification  was not automatically required in all contested cases and found that the judge could  utilize the remittal  procedure to avoid the appearance of impropriety. 

The Committee finds that the logic of that opinion should  apply here.  The judge should prevent the  law clerk from participating in or working on any proceedings in which the  clerk’s father or his law partner appear, which would eliminate any potential  conflict.1   Because it is only the father of the judge’s  law clerk who will appear as an attorney in a proceeding before the judge and  not “the judge’s spouse or person within the third degree of  relationship to either of them, or the spouse of that person,” Canon 3.E.(1)(d)  does not require disqualification of the judge.2   However, the judge must still avoid the  appearance of impropriety and act in a manner to promote the public’s  confidence in the integrity and impartiality of the judiciary as required by  Canons 1 and 2.  Thus, in matters such as  contested motions or trials in which the father or his law partner appear, the  judge must fully disclose the relationship of the judge’s clerk and the father  or his law partner. 

In conclusion, the possibility of disqualification  only arises in contested cases.  The  judge should require his law clerk to abstain from involvement, though the  judge is not automatically disqualified.   However, the judge should follow the remittal procedure and disclose  the relationship of the judge’s clerk and the father or his law partner.

1 Canon 3E  of Rule 506, SCACR governs staff attorneys and law clerks and provides that a  law clerk should disqualify himself or herself in a matter where he is related  by blood or marriage to an attorney in a proceeding.

2  In Opinion  10-2011, this Committee found that Canon 3.E. (1)(d) allows a judge to prohibit  a law clerk from working on a case and, thus, the judge himself would not be  disqualified. However, in light of the more specific Rule 506, governing  disqualification of a law clerk, the judge has no discretion in whether or not  to allow a law clerk who is related by blood or marriage to a party or attorney  to work on a matter.  Thus, to that  extent, Opinion No. 10-2011 is overruled, and a judge may not refuse to allow  disqualification of a law clerk under those circumstances.

(Mike Frisch)

April 14, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Thursday, April 9, 2015

Faster Than A Speeding Judge

A judge who was stopped for speeding on her way to an interview with the Judicial Nominating Commission was reprimanded by the Florida Supreme Court.

Her driving record had been an issue in an earlier interview with the commission.

From a stipulation

During an interview on March 28, 2013, the JNC questioned Judge Recksiedler regarding her driving record. Then, on March 17, 2014, while driving to another interview with the 5th DCA JNC, the Florida Highway Patrol stopped Judge Recksiedler and issued her a citation for speeding. The traffic stop caused Judge Recksiedler to be late for her interview with the JNC.

In her opening statement to the JNC on March 17, 2014, Judge Recksiedler addressed the Commission’s previously expressed concerns about her driving record by stating that she “takes its concerns about her driving seriously.” At no point during or after her interview, however, did Judge Recksiedler inform the members of the JNC that she had received a speeding ticket that morning...

Later, on September 18, 2014, Judge Recksiedler had a third interview before the 5th DCA JNC. That interview was videotaped by a local news organization. The link to the interview is: http://volusiaexposed.com/jnc/jnc9182014.html. During this interview, a Commissioner asked Judge Recksiedler about her driving record. “Judge, you came before us in March earlier this year and you addressed some of the commission’s concerns regarding your driving record and I was wondering how that was going. Have you had any stops this year?”

When testifying before the JQC investigative panel, Judge Recksiedler explained that she knew that each member of the JNC had background information that included her traffic record, including her March 17 stop. She misunderstood the question to be about stops since her March 17 JNC appearance when she had received the citation in route to the interview and as referenced by the questioner. Thus, Judge Recksiedler testified, she answered “no.” While her answer may not have been intentionally false, it was confusing and misleading. Judge Recksiedler acknowledges that she should have mentioned the March 17 traffic stop to avoid the confusion and to ensure that the commission was aware that she was not trying to avoid the issue.

The court

Candor as a judge is clearly critical. The JQC determined that Judge Recksiedler’s lack of candor may not have been “intentionally false” but it was “confusing and misleading.” The JQC further determined that omitting important information requested from the Fifth District Court of Appeal Judicial Nominating Commission and then later providing inaccurate information regarding the traffic stop “was inappropriate.” We agree with the JQC that the incompleteness and inaccuracy of the responses constitutes a lack of candor amounting to an ethical violation where, as here, the statements are misleading.

Reprimand was appropriate because the judge accepted responsibility and showed remorse.

Details from the Orlando Sentinel. (Mike Frisch)

April 9, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 7, 2015

Proceed, Governor

A person nominated by the Governor for a judgeship does not have a right to assume the bench if the appointment process is not completed, according to a decision of the full Massachusetts Supreme Judicial Court.

The plaintiffs, Michael J. McCarthy and Mary-Ellen Manning, filed a complaint in the county court in July, 2013, against the Governor and the Secretary of the Commonwealth, seeking to establish that McCarthy had been nominated, confirmed, and appointed to a Massachusetts judgeship in 2012, and that he is therefore entitled to a commission for that office.

The court

The Governor's appointment of an individual to judicial office becomes effective "when the last act to be done by the [Governor is] performed." Marbury v. Madison, supra. See 1 Op. Attorney Gen. 140, 141 (1894). At a minimum, this requires that the Governor communicate unequivocally his determination, informed by the Council's advice and consent, to exercise the power of appointment. Rep. A.G., Pub. Doc. 12, at 96 (1972) ("Appointment occurs, of course, when the Council has given its advice and consent to the nomination and the judicial commission has been issued" [emphasis added]). The appointment, like the nomination, is highly discretionary, and it is for the Governor and the Governor alone to decide. There is nothing ministerial about the Governor's decisions to nominate and appoint. Contrast Rep. A.G., Pub. Doc. 12, at 107 (1984) (describing Secretary's role in judicial appointment process; stating that Secretary "functions in a . . . ministerial manner with respect to gubernatorial appointments"). As stated in Opinion of the Justices, 190 Mass. at 619-620, when the Governor has the power to act, "[t]he act, first of all, and afterwards for all time, is the act of the Governor."

There is nothing in the record before us to suggest that the Governor took action to appoint McCarthy to the vacant judgeship at any time. To the contrary, the evidence is that the Governor did not proceed with an appointment in any fashion after the vote of the Council on McCarthy's first nomination on September 26, 2012, or after Manning's letter on October 17. Instead, he resubmitted the nomination to the Council. Likewise, after the Council's vote on the second nomination, the Governor indicated that he considered the matter closed. Thus, even if we were to assume for the sake of discussion, as the plaintiffs argue, that the votes of the councillors at the September 26 meeting, supplemented with Manning's purported vote by letter to the Governor on October 17, combined to constitute the requisite "advice and consent" and the required number of votes in favor of McCarthy's nomination, we conclude nevertheless that McCarthy did not validly obtain a judgeship.

The full court agreed with a single justice that mandamus and other relief was not available. (Mike Frisch)

April 7, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Monday, April 6, 2015

His Cash Is His Bond

A New York Town Court Justice (who is not an attorney) was admonished for his handling of cash put up as a bond

After conducting a late-night arraignment in Doe, a case that was returnable in a neighboring town court, respondent did not deposit the $500 cash bail into his court account, as required by the relevant rules. Instead, he personally delivered the money later that day, along with the court records of the matter, to the Town of Wayne municipal building, leaving the envelope marked "BAIL $500.00 CASH" with an unidentified individual. Though it is unclear in the record before us whether the funds were received or deposited by the Wayne Town Court, respondent's own conduct  inconsistent with his duty to safeguard court monies entrusted to his care. His departure from the mandated procedures placed the funds at risk and gave rise to questions and uncertainty as to how the money was handled all of which could have been avoided if he had deposited the bail into his court account as required. And at the very least, it was ill-advised to leave a cash-filled envelope with an unidentified person at the Wayne municipal building. Respondent's failure to keep any records of the case, or to record the arraignment, was also a violation of the procedural requirements and compounds the appearance of impropriety.

The Commission on Judicial Conduct imposed the sanction. (Mike Frisch)

April 6, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Friday, April 3, 2015

Recusal Granted With Regrets

A Delaware Master in Chancery has granted a motion to recuse her in light of the "appearance of impropriety"caused by her former association with a law firm involved in the case.

The mere involvement of [the law firm] Potter Anderson as counsel in a proceeding before me indisputably would not create the appearance of impartiality. Here, however, Mr. Greenspan seeks to amend the pleadings to add the firm and three of its attorneys as defendants and impose personal liability on them. I am confident that – as a subjective matter – I could hear this action free from bias or prejudice, even if Potter Anderson or various of its attorneys are added as defendants. I worked for the firm for approximately seven years, left on amicable terms, was not a partner, and do not have any continuing financial interest in the firm or any exposure to liability the firm may incur. Nonetheless, I have concluded that – under these circumstances – there would be an appearance of bias in presiding over a matter that could result in a finding of liability for my former firm or several attorneys with whom I closely worked while employed there.

I am aware– and deeply regret –that recusing myself from this case will impose additional work on one of my colleagues. The decision is not one I relish or make lightly. The importance, however, of maintaining both the fact and appearance of an unbiased judiciary must, in my view, take precedence. While Potter Anderson or its attorneys are – or may be – defendants, I believe there is a sufficient basis for Mr. Greenspan to question my impartiality.

When I was recused from an assigned matter at the Office of Bar Counsel, I took a comparable case from the colleague who replaced me. That cures any regrets. (Mike Frisch)

April 3, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 1, 2015

Flipped Out Judge Gets Reprimanded

The Ohio Supreme Court has publicly reprimanded a judge for a drunk driving conviction

On January 12, 2013, Marshall was involved in a one-car accident in which he struck an embankment and flipped his vehicle. He was later arrested and charged with operating a motor vehicle while intoxicated. On March 8, 2013, he pleaded guilty to the charge and was sentenced to  those days suspended. He was placed on nonsupervised probation for up to 60 months and ordered to pay a $550 fine plus court costs. The parties stipulated that Marshall’s conduct violated Jud.Cond.R. 1.1and 1.2, and relator agreed to dismiss the alleged violation of Prof.Cond.R. 8.4(h).

The court noted steps taken by the judge to address his alcoholism. (Mike Frisch)

April 1, 2015 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Thursday, March 26, 2015

Obstruction Of Breathing Charge Gets Judge Suspended

The New York Court of Appeals has suspended a Green Island Town Court judge recently charged with domestic violence.

CBS 6 had a report on the charges

The Albany County Sheriff's office have arrested 45 year-old Jeffrey Dorrance, charging him with misdemeanor Criminal Obstruction of Breathing.

Police say they were contacted by Green Island Police, citing a potential conflict of interest with Dorrance serving as a judge.

Albany Police say the charges stemmed from a physical domestic violence incident that occurred over the weekend.

Dorrance was arraigned and released on his own recognizance.  He is due back in court on Tuesday.

(Mike Frisch)

March 26, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 24, 2015

Walking Judge May Serve As Team Captain

A recent opinion from the Florida Judicial Ethics Advisory Committee

ISSUE ONE

May a judge, as a member of the Board of Directors of a District Court of  Appeal Historical Society, encourage others to participate in a walk/run  fundraiser that is sponsored by a bar association when the funds will support  the bar association’s pro bono project?

ANSWER: No, unless the solicitation is limited to judges  over whom the judge exercises no supervisory or appellate authority.

ISSUE TWO

 May a judge  participate in a walk/run fundraiser as a team captain and coordinate logistics  for the team, such as snacks and T-shirts, when the project supports the bar  association’s pro bono projects?

ANSWER: Yes.

Reasoning

Notwithstanding  the Code’s prohibition on direct solicitation of funds, the Code encourages  other participation in activities involving the law, the legal system, and the  administration of justice, when the funds are used for a law related purpose. Therefore,  pursuant to Canon 4D, the inquiring judge may be involved in planning the  event, may be featured in the program as a team captain, and may permit the  judge’s title to be used in conjunction with the event. Furthermore, the Code  permits active participation in the event, such as participating in the  walk/run itself and providing logistical support, such as arranging for  T-shirts and providing concessions.

Therefore,  because this is a function being sponsored by a law related organization, the  fundraiser concerns the law, the legal system, or the administration of  justice, and the funds are used for a law related purpose, the inquiring judge  may participate as a team member and team captain and may otherwise actively  participate in the event, but may not personally or directly solicit others to  participate unless such persons are other judges over whom the judge exercises  no supervisory or appellate authority.

(Mike Frisch)

March 24, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Monday, March 23, 2015

Judge's Facebook Post Draws Sanctions

The Florida Supreme Court has agreed to a 30-day suspension of a judge, according to this article in the Orlando Sentinel.

Judge Debra Krause on Friday agreed to a 30-day suspension for using her Facebook page to criticize the lawyer who defeated her husband, Mitch Krause, in a judicial race in November.

Judge Krause, 40, of Longwood, on Aug. 5 used Facebook, urging friends to "flood" the Facebook campaign page of now-Circuit Judge Susan Stacy and accuse her of misrepresenting Mitch Krause's involvement in his wife's previous judicial ethics case.

 

The Sentinel's Rene Stutzman had this earlier report

The Florida Supreme Court on Wednesday recommended that Seminole County Judge Debra Krause be suspended without pay for 30 days for a Facebook post that suggested the woman who defeated her husband in a judicial election was a liar.

 That suspension would amount to $11,500 in lost pay.

It is on top of a $25,000 fine the court wants imposed on Krause for a different set of violations, all associated with her 2012 campaign for office.                

 On Wednesday the high court said those two cases – the 2014 Facebook post and the 2012 campaign violations – should be handled separately and that Krause should be disciplined for each one.

In November, the state agency that polices judges, the Judicial Qualifications Commission, reached the equivalent of a plea deal with Krause and agreed to combine the two and impose no new punishment.

The sanctions they had agreed to for the first breach – a $25,000 fine and public reprimand – would cover both, the two sides said.

 But the high court rejected that idea.

The court said Wednesday that the penalty for the first breach would remain the same, but she should be suspended without pay for a month for what she wrote on Facebook.

On Aug. 5 she urged people to flood the Facebook page of now-Circuit Judge Susan Stacy, who was running against Krause's husband, Mitchell Krause, with messages accusing her of misrepresenting his role in the campaign violations Judge Krause admitted making in 2012.

Those include Judge Krause reporting that she loaned her campaign up to $82,000 when, in reality, the money was a gift from her husband.

Judge Krause did not return a phone call Wednesday.

Central Florida judges are rarely suspended. In 2010 Orange-Osceola Circuit Judge N. James Turner was suspended with pay for a year and a half by then-Chief Judge Belvin Perry Jr. while Turner was investigated for repeatedly hugging an Osceola County courthouse deputy clerk.

The Florida Supreme Court ordered him suspended without pay the following year then removed him from the bench.

In a separate case, the JQC recommended that Orange-Osceola Circuit Judge Tim Shea be suspended without pay for two months in 2012 because of complaints that he bullied attorneys, but the high court concluded that a public reprimand was sufficient.

In the cases of Judge Krause, Wednesday's action by the high court may not be the final word.

In its order, it gave her and the JQC 30 days to accept or reject the proposed suspension.

Stutzman also had the post itself

"Susan Stacey [sic] is again misrepresenting. … to try and make Mitch look unethical and without integrity. Could you all take a minute and POST on Ms. Stacey's [sic] campaign site that having ethics and integrity means TELLING THE TRUTH! Please post as soon as possible. I want to flood the post!"

The judge closed with, "THANK YOU and have an ethical day!!!!"

(Mike Frisch)

March 23, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Sunday, March 22, 2015

Getting Personal

The Louisiana Supreme Court has ordered a 30-day suspension of a Shreveport City judge who had abused her contempt power against a city prosecutor with whom she had an adversary relationship prior to assuming judicial office.

The prosecutor's office instructed its attorneys to interact with the judge through a designated person. The contempt came because the city prosecutor followed that directive.

Judge Sims’ actions resulted from her personal feelings towards Ms.Gilmer and her perception that Ms. Gilmer lacked respect for her. But Judge Sims’ actions cannot be viewed in a vacuum. We must give some consideration to the context of Judge Sims’ actions in light of her adversarial relationship with Ms. Gilmer, and in light of Ms. Gilmer’s actions. As a judge, it is certainly understandable that Judge Sims was frustrated regarding Ms. Gilmer’s failure to agree to a meeting. And, the record supports Judge Sims’ assertions that Ms. Gilmer failed to directly respond to some of her requests for a meeting. While Judge Sims’ conduct cannot be condoned, it is not unreasonable that Judge Sims felt ignored and disrespected.

The judge got mad and then got even

The Commission found that Judge Sims committed bad faith legal errors by holding Ms. Gilmer in contempt for conduct that was not contemptuous and for sua sponte dismissing the fifteen criminal cases without legal authority to do so. Based on Judge Sims’ bad faith legal errors, the Commission found by clear and convincing evidence that Judge Sims failed to personally observe a high standard of conduct so as to preserve the integrity and independence of the judiciary, in violation of Canon 1; failed to respect and comply with the law and to act in a manner that promotes public confidence in the integrity and impartiality of the judiciary, in violation of Canon 2A; and failed to be faithful to the law and maintain professional competence in it, in violation of Canon 3A(1). We agree.

The court rejected the Judiciary Commission's proposed 90-day suspension.

Justice Guidry dissented on the sanction

I dissent in part from the majority’s imposition of a suspension of thirty days without pay. Because this was a relatively newly-elected judge faced with a somewhat unusual directive from the City Attorney that assistant city prosecutors could not meet with city court judges to discuss administrative matters except upon notice to the City Attorney, and because the judge has accepted responsibility and learned from her misconduct, I would simply censure the judge pursuant to La. Const. art. V, § 25(C), and order her to reimburse the Judiciary Commission’s costs. 

(Mike Frisch)

March 22, 2015 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 17, 2015

Inner Demons On Outer Banks

Disciplinary charges have been filed by the North Carolina State Bar against a Superior Court judge with jurisdiction over Kill Devil Hills, made famous by the Wright brothers.

The judge's son and companions had an encounter with KDH police that did not lead to criminal charges.

 The judge allegedly summoned government officials to a chambers meeting after the son was detained, expressed anger over the detention,  told the official that he had the power to remove them from office, became "embroiled in the affairs of the KDH police department," accepted ex parte complaints, issued orders without any action or petition pending, and other improprieties.

The Daily Advance has details on the feud.

Reflector.com noted a judicial reprimand imposed on the judge. (Mike Frisch)

March 17, 2015 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)