Legal Profession Blog

Something Rotten In Denmark

A public reprimand--the most severe sanction that could be imposed in light of the resignation from office--was imposed by the South Carolina Supreme Court on a`magistrate for two instances of misconduct. One matter involved the following misconduct:

On August 19, 2004, respondent was about to enter Highway 321 from his driveway when he noticed a pick-up truck traveling toward Denmark at what he thought was a high rate of speed.  Respondent estimated the truck’s speed to be 100 miles per hour.  Once he entered the highway himself, respondent observed the truck attempting to pass slower vehicles, almost causing some oncoming cars to veer off the road. 

Gregory Brown was driving the truck.  Brown eventually stopped at a red light in Denmark.  Respondent pulled up on the left side of the truck, looked at Brown, and shook his head in a disapproving manner.  Brown rolled down the window and asked what respondent was looking at, to which respondent replied, “I’m looking at you,” and made a comment about Brown’s driving.  Brown responded that he did not care what respondent thought, to which respondent replied:   “You might ought to care, you might run into me at some point.”  When Brown   asked why, respondent said that he was the municipal judge for Denmark.

The light changed, and as the truck pulled forward, respondent turned right, across the traffic lane and pulled in behind the truck to an adjacent parking lot.  According to respondent, he pulled off the road in order to retrieve his cell phone, which had slid off the passenger seat, so he could call police.

As respondent exited his vehicle, he noticed the truck coming backward toward him.  Respondent assumed the truck was trying to run over him, reported that it narrowly missed him and would have hit him had he not jumped out of the way.  According to Brown, however, he did not know who respondent was or what he was doing, and he drove backwards to keep respondent in front of him in order to see what respondent was doing.

After additional verbal exchange between respondent and Brown, respondent entered his vehicle, drove through a red light, and proceeded to the Denmark police department where respondent reported that someone had tried to run over him.  An officer accompanied respondent back to the scene, and a bystander reported that the truck had gone toward Barnwell.  The bystander gave them Brown’s license plate number.  Respondent then went to the local   magistrate’s office and began the process of taking out a warrant against Brown for the offense of threatening a public official.

Brown was stopped by police a short while later in Barnwell.  A Denmark police officer brought Brown back to the magistrate’s office where respondent was seeking a warrant.

The   presiding magistrate examined the applicable statute and determined that a   warrant for the offense of threatening a public official should not be issued   and suggested that perhaps another charge would be more appropriate.  After   some discussion, the officer issued a reckless driving ticket to Brown.  The   magistrate set bond, and Brown was transported back to his truck.  Brown   subsequently mailed in a $200 bond, which was forfeited; he was convicted for   reckless driving.

Respondent   asserted to Disciplinary Counsel that his intention was to dissuade Brown from   further dangerous driving that he believed was an imminent threat to other   motorists.  Respondent acknowledges that reference to his judicial office was   not appropriate.

The other charges involved a foreclosure action against marital property held solely in his wife's name. He had attempted to set aside the foreclosure as a purported purchaser from his`wife.

For whatever it's worth, Wikipedia`reports the following about Denmark:

Due to the limited income, which is close to three times less than that of the overall U.S. household, the municipality has had to resort to other revenue-generating means, such as speed traps. The most noted, documented one is located on State Highway 70 near Wisteria Street. Leaving town, the 30 mph through-town speed limit changes to 45 on an uphill curve (conversely, entering town from the 45 mph highway speed, it abruptly changes to 30 mph on a downhill curve) with no notice or warning. The local police wait in a ditch nearby behind a hill looking for cars with no front license plates (which means it is not a South Carolina vehicle). As little as a few miles above speed limit earns a ticket.^{[citation needed]}

(Mike Frisch)

I Now Pronounce You...

A recent judicial ethics opinion from Massachusetts holds that a judge may serve as a justice of the peace for the sole purpose of conducted a marriage ceremony:

Performing marriages does not implicate any policy making role, has no political agenda and requires no advocacy. The ability to harmonize the judicial role with serving as justice of the peace, at least for the purpose of solemnizing marriage, is further bolstered by Article II of the Massachusetts Constitution, which provides that "No governor, lieutenant governor, or judge of the supreme judicial court, shall hold any other office or place, under the authority of this commonwealth,...saving that the judges of the said court may hold the offices of justices of the peace through the state..." Similarly, Article VIII provides that "judges of the courts of common pleas shall hold no other office under the government of this commonwealth, the office of justice of the peace and militia offices excepted." This language also reflects an understanding that the role of judge is not inconsistent with holding the role of justice of the peace.

(Mike Frisch)
 

Judicial Campaign Charges

WSAW.com reports that:

MADISON, Wis. (AP) -- State regulators want to punish the newest member of the Wisconsin Supreme Court for running a campaign ad that falsely suggested his opponent freed a child molester. The Wisconsin Judicial Commission says it found probable cause that Michael Gableman violated the code of judicial conduct, which prevents judicial candidates from knowingly misrepresenting facts about their opponent. Gableman defeated incumbent Justice Louis Butler in the April election. At the time, Gableman was a little-known county judge from northwestern Wisconsin. The commission says Gableman knew an ad wasn't true when it claimed Butler found a "loophole" to free a child molester he had represented as a public defender. Update: ABA Journal has now posted the complaint in this matter. (Mike Frisch)

Voted Out Not Removed

A former justice court judge was reprimanded by the Mississippi Supreme Court. The judge was the subject of two complaints alleging that she had exceeded her authority in separate matters. The court sustained the conclusion of the Commission on Judicial Performance that one of the charges was not proven. Further, the commission's counsel cannot appeal that conclusion ("there is no provision in the [pertinent rules] which allows Commission Counsel to appeal the decision of his own client"). The other matter involved the repeated entry of unlawful orders that resulted in incarceration of a person for the non-existent crime of "peace bond."

The court would have removed the judge but the voters of Hinds County had already resolved the issue by voting her out of office or, as the court put it, "suffered defeat at the hands of the electorate." (Mike Frisch)

Stay Out

Effective today, the Maine Supreme Judicial Court has entered an order that bars law enforcement officers, probation officers, lawyers, juvenile caseworkers, and members of the public into the clerks offices of the Superior, District, and Supreme Judicial courts. The order also prohibits all non employees from access to the court's computer terminals except "any terminals that may be installed for information retrieval only."

Wonder if there is a backstory to this order. (Mike Frisch)

"A Solemn Proceeding"

A judge was ordered to appear before the Florida Supreme Court for administration of a public reprimand. The sister of his former law partner was arrested for domestic battery against her husband.

Even though the matter was not assigned to him, [he] thereafter contacted the Broward County Sheriff's Office and authorized her release to the Pretrial Release Program without the benefit of a first appearance. [He] authorized the defendant's release notwithstanding the fact that she was currently serving a sentence of five years probation for obtaining controlled substances by fraud, thus making her ineligible for [release ].

The court noted that the judge acted without full knowledge of the alleged offense or the prior record of the defendant. The Judicial Code provision requiring integrity and impartiality "is not an aspirational principle but a clear and unequivocal mandate." The reprimand will be "administered before the entire Supreme Court in a solemn proceeding." (Mike Frisch)

Expression Of Support

A presentment was filed with the New Jersey Supreme Court seeking a sanction against a municipal court judge. The Advisory Committee on Judicial Conduct charges that the judge engaged in improper political activity after criminal charges were filed against the Passaic City Mayor for allegedly taking a $5,000 bribe. A newspaper printed a photo of a number of people standing outside the mayor's home on the day of his arrest, including the judge. The judge explained that he went to console the mayor's wife, which the committee accepted as true. Nonetheless, the open and public support of an indicted public official involved actions that  "were undertaken in a setting that could be seen to demonstrate political as well as personal support for the Mayor." The committee seeks a public admonishment.

It appears that the court entered an order yesterday, although I was unable to open the document. (Mike Frisch)

"Flagrant Disregard Of The Law"

The Ohio supreme Court publicly reprimanded a former judge for conduct described on the court's web page as follows:

The Supreme Court of Ohio today publicly reprimanded former Xenia Municipal Court Judge Susan L. Goldie for violating the Code of Judicial Conduct by imposing sanctions including jail sentences against defendants in cases before her court without affording those defendants due process “in flagrant disregard of the law.” 

The Court adopted findings by the Board of Commissioners on Grievances & Discipline that Goldie, who left judicial office in December 2007, exceeded her authority and denied the defendants due process in three cases involving offenders who had failed to pay fines or to comply with court orders imposed in previous appearances before her court. In one case Goldie imposed nine consecutive jail terms totaling 270 days for contempt of court on a defendant without conducting a required hearing to determine whether the defendant was financially able to pay overdue fines and court costs from prior traffic and criminal convictions.

The court's decision is linked here. (Mike Frisch)

Judge Disbarred

In a bar discipline case in which the Bar Association had recommended public censure, the Oklahoma Supreme Court disbarred a judge of the Court of Criminal Appeals who had engaged in misconduct after learning that he had a previously unknown son who was in trouble with the law. As the court found:

At some time before the acts alleged in the Complaint, the respondent experienced marital problems. During that time he renewed his relationship with Dawn Lukasic. She told him they had a son named Loren W., about whom the respondent had no previous knowledge. The young man had fourteen felony charges pending in Grady, Comanche and Stephens Counties. These felony charges included two counts involving drugs, numerous burglary counts, and two counts of concealing stolen property. The respondent retained three attorneys to represent his son, and he took an active role in his son's criminal cases through multiple communications with defense counsel and various Department of Corrections employees. From June 24, 2004, to October 29, 2004, he traveled to the facilities where his son was incarcerated, almost on a weekly basis, at the taxpayer's expense. The real purpose of the trips was to either visit his incarcerated son or to take care of legal and other issues involved in his son's incarceration. On some of the trips he was accompanied by Dawn Lukasic. He filed travel claims seeking reimbursement for these personal trips, claiming he attended project conferences, projects, or meetings of the Regimented Inmate Discipline (RID) Program offered by the Department of Corrections. But there were no RID project conferences, projects, or meetings on the dates for which he filed travel claims. These travel claims were signed by the respondent under oath and under penalty of perjury.

He also contacted one of the three judges who would sentence his son and pressured another judge, repeatedly contacted the defense lawyers, criticized the probation officer in a letter on his court stationary, hired Ms. Lukasic as his administrative assistant and intervened when she was charged with drug possession.

The court concluded that disbarment was the proper sanction:

Notwithstanding the cooperation of the respondent with the Bar Association in its investigation and prosecution of this matter; the fact that the respondent voluntarily repaid the amounts improperly claimed; the respondent's many years with no previous disciplinary record; the domestic stresses of divorce, single-parenthood, and discovery of the fact that he had an adult son charged with multiple felonies; and the high recommendations from testifying lawyers of his current fitness in his practice of law, we find mitigation of discipline unwarranted. In view of the seriousness of the respondent's misconduct while serving in his position as a judge on the Oklahoma Court of Criminal Appeals, we reject the Bar Association's and Professional Responsibility Tribunal's recommendations and find, under these facts, that the respondent should be disbarred from the practice of law and assessed the costs of these proceedings in the amount of $892.53.

The Professional Responsibility Tribunal had recommended a suspension of two years and a day. NewOK.com reports that the former judge represented Ms. Lucasic in connection with drug charges and that they were married after her release from prison.(Mike Frisch)

Appearance of Impropriety

The New York Commission on Judicial Discipline accepted the resignation of a town court justicein the face of charges (linked to the page of the commission's report) of presiding in a number of matters despite a personal connection to a litigant. The non-attorney justice is a social studies teacher and hostess. One of the charges related to the justice's conduct on her first day on the bench, dismissing dog control violation charges against a brother-in-law. (Mike Frisch)

To Teach, To Judge

A judicial ethics opinion from the State of Washington Judicial Ethics Advisory Committee considers the ethical implications when a judicial officer teaches a class at a sports club outside of work hours (ok if not undignified) and teaching a law school class during the business day:

Teaching a class that begins during court hours several times a week has the potential to interfere with the performance of judicial duties and also creates the appearance that the judicial officer is permitting outside activities to take precedence over judicial duties. Before a judicial officer agrees to undertake such a schedule, the judicial officer should work with the law school to try to schedule the law school class either before or after court hours. If that cannot be accomplished, the judicial officer must take necessary precautions to ensure that teaching the class does not interfere with the performance of judicial duties or increase the workload of other judicial officers and/or court personnel. Those precautions may include such things as assignment to a particular calendar, courthouse location or other accommodations that might be worked out with the presiding judge. If the judicial officer is not satisfied that teaching the class will not interfere with the performance of judicial duties, the judicial officer should not teach the class.

(Mike Frisch)

Indirect Thank You Notes Not Improper

The Louisiana Supreme Court recently issued amendments to its Code of Judicial Conduct and the commentary to the code. The code revision deals with the retention of usused contributions. The commentary addition deals with the issue of "thank you" notes to campaign contributors. The note can be sent by the judge or judicial candidate's campaign committee but not by the judge or candidate herself. (Mike Frisch)

Read The Fine Print

Good advice from the La Crosse (Wisconsin) Tribune concerning upcoming judicial election campaign ads:

Chief Justice Shirley Abrahamson will be up for re-election and likely will face opposition from big-money groups running so-called "issue ads" that actually are de-facto campaign ads. Based on past history, the ads will likely play on negative, nasty themes.

The Wisconsin Democracy Campaign, a private group that tracks campaign spending and advocates for campaign reform, put out a report Wednesday that gave thumbnail sketches of the three conservative groups and two liberal groups involved in electioneering in the past two state Supreme Court races. On the conservative side are Wisconsin Manufacturers & Commerce, the Club for Growth and the Coalition for America's Families. Liberal groups include the Wisconsin Education Association Council and the Greater Wisconsin Committee.

When the relentlessly negative ads start running next fall, look carefully at the fine print that says which group is supporting the ad. Pay more attention to what the candidates say, and then make up your own mind and vote.

The principle applies to all elections, not just those involving judicial office. (Mike Frisch)

Accepting Responsibility

A non-attorney town justice has resigned effective today and agreed to the public disclosure of pending charges, according to a press release from the New York State Commission on Judicial Conduct. The justice also agreed not to seek judicial ofice in the future. The justice's letter of resignation is frank acknowledgment of error, noting that he has asked peole who appear before him to accept responsibility for their actions and should demand no less of himself. (Mike Frisch)

Bias On The Bench

A juvenile court judge in Tennessee was censured for his treatment of litigants who were "illegal aliens, children of illegal aliens, or perceived by [the judge] as being illegal aliens." Among the actions taken were declaring children as abused and neglected in cases where no such claim had been made. When advised that such determinations were improper, the judge declared that juveniles he suspected were in such status were "unruly" and jailed them. He also made comments comments that suggested that he predetermined cases and told attorneys to pursue appeals if they wished to challenge his rulings. (Mike Frisch)

Judicial Misconduct Charges In Tennessee

Tennessee Disciplinary Counsel has filed misconduct charges against a general sessions court judge. The charges allege that the judge had referred litigants to a private probation service pursuant to a Supreme Court rule that forbids referrals based on nepotism and favoritism. The person who had incorporated the private probation service was married to the judge's spouse's sister. The charges contend that the judge created an "artificial barrier for his continued utilization [of the probation service] as the exclusive probation provider for [his court]" by vesting authority for selecting the service to the county mayor. The judge's relative receives compensation, sits next to the judge during court sessions and is "known by the general public [to have] a familial relationship to [the judge]." The judge also is alleged to have (1) threatened contempt to a defendant who repeated remarks that his "[p]robation was crooked [and the judge] was crooked" and (2) accepted but did not disclose a $100 payment for speaking at a church.

The judge's answer to the charges is linked here. The answer contends that the judge and the probation services provider are "not related" as they have only non-blood ties through two separate marriages.

(Mike Frisch)

Halverson re-election riddle

In Nevada, we're watching the judicial discipline hearing of Judge Elizabeth Halverson, who's been accused of, inter alia, making her bailiff give her foot rubs, falling asleep on the bench, eating with jurors during a criminal trial, and putting her husband under oath to find out if he cleaned the house. See here. My question is: assuming she gets thrown off the bench for her current term, what happens if voters re-elect her for a new term, given the power of incumbent name recognition? (posted by Nancy Rapoport)

Ready For My Close Up

The South Carolina Advisory Committee on Standards of Judicial Conduct has recently opined that a judge may participate in a television documentary concerning a case that he had prosecuted while serving as an assistant solicitor with the following limitation:

As long as the participation presents the judge as the assistant solicitor and avoids references to the judicial office, there will be little opportunity that (1) the private parties' interests are advanced by the prestige of the judicial office, or that (2) the judge's capacity, office, or duties will be cast in reasonable doubt. Therefore, the judge may participate in a television production discussing a case in which the judge served as assistant solicitor.

(Mike Frisch)

U.S. Supreme Court Cert Petition Argues Due Process Re West Virginia's Judicial Non-Recusal

Posted by Alan Childress

Mike Frisch has been following the ebbs and flows of the judicial bias accusations against members of the highest court of West Virginia (e.g., here; and see LEF's post here).  In particular, last week Mike posted here on the recent decision by one justice not to recuse himself in a case involving a major contributor. And I previously posted on a NY Times' column's similar worry about elected Ohio and Louisiana judges. 

Now Marcia Coyle of The National Law Journal, also published on Law.com here (dated Aug. 4), writes about an interesting petition for writ of certiorari to the U.S. Supreme Court filed in one non-recusal case (that matter discussed here), arguing that a lack of due process violates the U.S. Constitution.  The article is called High Court Review Sought on Judicial Recusals: W. Va. case triggers key ethical query.  One quote: 

"[T]here will be rare cases where campaign expenditures by a litigant create a constitutionally unacceptable appearance of impropriety. This is such a case," contends former Solicitor General Theodore B. Olson, co-chairman of the appellate and constitutional law group in the Washington office of Los Angeles' Gibson, Dunn & Crutcher.

The case necessarily raises the question of the reach and limits of "a key high court precedent -- argued and won by [Ted] Olson in 1986 -- [which] held that due process requires recusal only when a judge has a 'direct, personal, substantial, pecuniary interest' in the case before him. Aetna Life Insurance v. Lavoie, 475 U.S. 813." 

This justice's July 28, 2008 concurrence (the pdf is in full), and having him participate on the merits, suggests that such a line was not crossed.  The really-vitriolic dissents are here and here.  For example, one notes, "I am one judge voting on this case who can say that I owe nothing to Mr. Blankenship [defendant's CEO and the major contributor noted above] one way or another -- he did nothing to hurt or hinder my election.  He did not fund my campaign, nor am I a social friend of his."  The other says, in all bold not reproduced here:  "The point is that the majority went out of its way to make findings that fit its intended result rather than the justice of the cause."  The majority opinion, in full pdf, is here.  (One might assume that the substantive law dispute among the justices is on some exciting area of law, but actually it turns mainly on the proper standard of appellate review to apply to enforcement of forum selection clauses, a dry but often-crucial topic.)

The further question is whether the U.S. Supreme Court wants to get into the ethics issue as a matter of federal constitutional law.  I am guessing it does not.  I believe that the justices will use the argument that such extreme cases are "rare" -- turning it around -- to avoid granting cert.  Rare and messy.

Recusal Not Required

A litigant in a hotly-contested defamation suit sought the recusal of a Wisconsin Supreme Court justice on a variety of grounds that included political support of the justice by opposing counsel and the judge's appearance at a fund raiser in support of lesbian, gay, bisexual and transgender rights. The petition was filed after the court had rendered an adverse judgment in the underlying case. The supreme court today denied the recusal motion in the attached opinion. The court determined that the justice had not sought the endorsement of counsel and did not engage in any impropriety in attending the rally:

In addition to there being no requirement that a judicial candidate disclose all contributions to his or her campaign, the record before us does not support Donohoo's assertion that Justice Butler violated his campaign promise regarding contributions. According to the materials Donohoo has submitted, Justice Butler said he would refuse contributions from parties with pending cases before the court, but would accept and disclose donations from attorneys with pending cases. From the record before us, it appears this is precisely what happened. Justice Butler accepted and disclosed a $300 contribution from Attorney Pines. As the Judicial Commission noted, Bock and Irvings were not parties to a pending action. In addition, nowhere does Donohoo assert that Justice Butler knew that Bock or Irvings were board members of Fair Wisconsin. The code of judicial conduct does not require judicial candidates to attempt to research every possible organization with which contributors may have an affiliation. Such a requirement would be unduly burdensome to candidates for judicial office and we decline to impose it.

As to Donohoo's claim that Justice Butler acted improperly in attending the fund raiser, the Judicial Commission noted that "[j]udges and candidates for judicial office can announce their views on political and legal issues as long as they are not pledges or promises to decide cases in a certain way."

The court also was troubled by the timing of the motion. (Mike Frisch)

"An Unfortunate Truth"

In another entry in the long-running war in the West Virginia Supreme Court of Appeals, the Acting Chief Justice yesterday issued a concurring opinion defending his decision not to recuse himself in a matter and lamenting the state's judicial election process:

The opinions of the judge of a highest court of a state are no   place for intemperate denunciation of the judge's colleagues,   violent invective, attributings of bad motives to the majority of   the court, and insinuations of incompetence, negligence,   prejudice, or obtuseness of fellow members of the court.

Roscoe Pound, Cacoethes Dissentiendi: The Heated Judicial Dissent, 39 A.B.A. J. 794, 795   (1953). 

There is an important difference between a thoughtful, well-reasoned separate   opinion or order and one which is grounded in the political manipulation of legal doctrine;   and in the case of ensuring a stable, predictable and fair judicial system, that difference   matters.  Judges who use their opinions and orders simply as sensationalistic bombast by   which to convey partisan agendas or who pander to emotion rather than legal reason do a   disservice to the rule of law and to the institution they serve.

  It is a testament to the strength of our justice system that judges may disagree   and do so openly in separate opinions.  A well-reasoned and legally sound separate opinion   carries with it the opportunity for pointing out differences with the opinions of the other   members of the court without undermining public confidence in the judiciary.  Hon. Ruth   Bader Ginsburg, Speaking in a Judicial Voice, 67 N.Y.U.L. Rev. 1185, 1196 (1992).  By   furthering positive progress in the development of law, a well-honed opinion serves as an   invaluable instructional tool to judges, lawyers, legal scholars, law students and even to a   judge's colleagues.  “[T]he effective judge . . . strives to persuade, and not to pontificate.   [He] speaks in 'a moderate and restrained' voice, engaging in a dialogue with, not a diatribe   against . . . [his] own colleagues.” Id. at 1186 (internal quotations omitted).  A separate   opinion should never “generate more heat than light,” but rather should “'stand on its own   footing,' . . . spell[ing] out differences without jeopardizing collegiality or public respect for   and confidence in the judiciary.” Id. at 1194, 1196 (internal quotations omitted).  

If the touchstone of a judicial system's fairness is actual justice, which I believe it is, its legitimacy is measured in actualities, not in the manipulation of appearances   or the vagaries of sensationalism.  Actual justice derives from actual impartiality in decision-making and is conveyed in well-written legal opinions which are founded in the rule of law   -- not in orders, opinions or public pronouncements by judicial officers reflecting   partisanship, contempt for other members of this Court, or their staff, bias toward or against   the parties, or a pre-judging of the issues.  

  It is an unfortunate truth that judicial officers in West Virginia must stand for   office in political elections.  Notwithstanding this political selection method, the public's confidence in our system of justice is necessarily undermined and the stability and   predictability of the rule of law is compromised when politics cross the threshold of our   Court.  The most important factors therefore affecting the public's perception of actual   justice in this Court necessarily are the actual decisions of this Court, and its members, over time, the professional demeanor of this Court's members, and the quality of the written opinions and orders which we produce in specific cases. 

By baiting emotions, I believe the Dissenting opinion adopts a distinctly “political voice” rather than a “judicial voice.” With due respect to my dissenting colleagues,   this case does not present a close call on the basis of the rule of law.  Because the Majority   decision possesses such a deep strength of legal authority, I do not believe that the Dissenting opinion in any way weakens the authority or substance of the Court's decision.

(Mike Frisch)
 
       

Removed Magistrate Reprimanded

The South Carolina Supreme Court issued a public reprimand of a now-resigned Beaufort County magistrate for the following misconduct:

Respondent admits in the Agreement for Discipline by Consent that   he made inappropriate statements in commenting on a warrant.  Specifically,   respondent referred to the use of crack cocaine and addiction thereto as a   “black man’s disease.”  On another occasion, respondent reacted in an overly   harsh manner to comments made by a speaker at a seminar on criminal domestic   violence.

Respondent also admits that during a bond hearing, he directed a   defendant in a criminal domestic violence case to look at the victim, which was   contrary to instructions given to the defendant by the transportation officer   from the detention center.  While conducting bond court on another occasion,   respondent incorrectly advised a defendant of the penalty for the charge   against the defendant.

Finally, respondent admits engaging in behavior that, while   unintentional, could reasonably have been viewed as inappropriate by female   employees.

(Mike Frisch)

State Residency Sufficient

The Supreme Court of Nevada has held that a candidate for a district judgeship satisfies residency requirements by being a resident of the state, not the district where judge will sit if elected:

We conclude that NRS 293.1755(1) imposes a state residency requirement for district judges, and we reject the opposing view that the statute establishes a district residency requirement.  Nevada law provides that district judges are “state officers”[6] who enjoy statewide jurisdiction. Accordingly, it follows that the office of a district judge is a “state office.”  Because the district judge position is a “state office,” we conclude that Montero has met NRS 293.1755(1)’s residency requirement for his candidacy because (1) Montero resides in the State of Nevada, to which the office of a Sixth Judicial District Judge “pertains”; and (2) if elected, he will have jurisdiction to hear cases in other judicial districts, as well as in the Sixth Judicial District.

(Mike Frisch)

Unjudicial Behavior Charged

Hat tip to the ABA Journal for their post about judicial misconduct charges filed against a judge of the Allen Superior Court in Indiana. It is alleged that the judge attended a court proceeding in the courtroom of another judge "wearing his judicial robe." When the sentencing of a defendant was concluded, it is alleged that the judge approached the prosecutor and "created a disturbance." Choice quotes alleged: "Upstanding citizen, my ass!" To the defendant's parents: "Are you related to that piece of shit?" (Mike Frisch)

Halverson Saga Continues

The Nevada Supreme Court denied a petition by Judge Elizabeth Halverson to declare unconstitutional a Nevada law that created two year judgeships. The petition contended that a six-year term was required by the state constitution. If the relief sought had been granted, Judge Halverson's term in the judicial office to which she had been elected would have been extended by four years. The court concluded:

S.B. 195’s creation of judicial offices with initial two-year terms is constitutional.  The constitution allows the Legislature to create new judicial positions with initial terms of fewer than six years in order to place those positions on the same election cycle as district court judge positions generally.  As a result, we deny the petition for a writ of mandamus or prohibition and for declaratory relief.

(Mike Frisch)

Judge Permanently Disbarred

The Ohio Supreme Court permanently disbarred a court of common pleas judge for misconduct both as a judge and in private practice. The misconduct is described on the court's web page as follows:

In today’s decision, the Court unanimously affirmed the disciplinary board’s findings that Hoskins violated multiple provisions of the Code of Judicial Conduct while serving on the bench, including deliberately concealing his personal ownership interest in a building in which a court-related office contracted to lease space. The Court also found that Hoskins committed multiple rule violations by entering into discussions with a convicted felon, David Bliss, in which Hoskins suggested that Bliss’ purchase of the above-mentioned building at a greatly inflated price would be a legal way for Bliss to utilize money he claimed to have obtained years earlier through criminal activity and to have concealed from authorities while in prison. The Court noted that, because Bliss was secretly cooperating with a law enforcement “sting” operation at the time, the case record included tape recordings of conversations in which Hoskins gave Bliss detailed instructions on how to “launder” the alleged concealed funds from his earlier crimes through a stock transfer in which he would acquire ownership of Hoskins’ building.

 

With regard to the offenses alleged during his years in private practice, the Court adopted the board’s findings that Hoskins engaged in a pattern of misconduct involving fraud, deceit, dishonesty or misrepresentation and committed other ethical offenses by repeatedly making improper and unauthorized withdrawals of money for his own use from the estates of several relatives over whose assets he exercised fiduciary control as executor or administrator. The board also found that Hoskins failed to timely disburse estate assets to the rightful beneficiaries, failed to keep required records accounting for his withdrawals and disbursements from the estates, charged excessive legal fees, and filed incomplete, inaccurate and misleading reports with the probate court that concealed his improper diversion of funds from the estates to his own use.

 

In rejecting Hoskins’ claim that permanent disbarment was disproportionate to his offenses, particularly in light of the fact that he was acquitted of all criminal charges brought against him, the Court noted that he had engaged in a pattern of misconduct stretching over a period of almost 10 years and that his actions involved multiple rule violations, reflected dishonest and selfish motives, and had caused serious financial harm to his private clients and “incalculable harm to the public perception of the judiciary and attorneys.”

(Mike Frisch)

Forger Gets the Small Town Blues, and More on the Judge Who Was Mean

Posted by Alan Childress

You know your city is really a small town (we're looking at you, Wichita) when the check-forger gets caught because she presented the check to that same Francisca Romero woman whose name was on the check.  So says this blog of legal and judicial news from Kansas. 

The What the Judge Ate for Breakfast blog also follows up, here, on Mike's previous story about the judge who got censured for meanness toward jurors, including links to other posts on the judge and news of her re-election prospects.  See especially the pointed comments and details at Anne Reed's Deliberations blog, who views the Kansas court's response as inadequate.  What about the actual effect on the criminal defendant tried to a jury "harangued into service"?  Maybe the judge's announcement that she was not "some angry shrew up here" did not remove the taint, Reed opines.

Resignation Moots Judicial Discipline

The New York State Commission on Judicial Conduct has issued a decision in a matter involving the following charges of misconduct by a non-attorney town court justice:

Respondent was served by the Commission with a Formal Written Complaint dated March 5, 2008, which alleged inter alia that respondent failed to effectuate the right to counsel in a timely manner or altogether in three cases, with the result that three defendants each spent a week in jail; and failed to administer her court properly, with the result that bail monies in six cases were not deposited in a timely manner despite the Commission’s prior Censure for such conduct, fine receipts in 22 cases were not remitted to the State Comptroller, a criminal case was dismissed because of the respondent’s failure to take action, and sentencing dates in three cases were delayed for months because the respondent failed to order the pre-sentence investigation reports from the Probation Department. 

The matter was closed in light of the justice's resignation from office. (Mike Frisch)

Umpire, Not Advocate

A brother and sister were involved in a bitter dispute over their father's estate. The sister obtained a court order that prohibited the brother from contacting her except through her representative. The brother was thereafter charged with criminal contempt of the no-contact order.

At the jury trial, the brother took the stand and was closely questioned by the trial judge (30 questions). The defense attorney did not object. Nonetheless, the Supreme Court of New Jersey reversed the conviction, holding that the judge had communicated through his questioning that he did not believe the brother's testimony. The court cautions trial judges to be careful in jury trials to not signal a view of witness credibility and thus influence the verdict. (Mike Frisch)

Judicial Temper

A New York family court judge was admonished for rude and sarcastic treatment of litigants in three cases. From the opinion of the Commission on Judicial Conduct:

Respondent has acknowledged that in three cases he made rude, intemperate comments to and about litigants that conveyed the appearance of bias.  His “angry,” “scolding” and “sarcastic” comments were demeaning and admittedly improper.  By berating the litigants in two matters for “wasting” his time by seeking custody and by requesting counsel, he also undermined the parties’ exercise of their legal rights and showed a disregard for the fundamental right to counsel, which a judge is obligated to effectuate, not to discourage. 

In one matter, shortly after the parties had left the courtroom, respondent mocked a litigant’s application and twice referred to the litigant as an “asshole” in the presence of court staff.  Respondent’s acknowledged lack of objectivity towards the litigant ultimately required his recusal from the litigant’s cases.

A judge’s rudeness is not excused by the fact that a particular litigant may be difficult or have a history of imperfect behavior.  Respect for the fairness and impartiality of the court is better fostered by a judge’s patience and courtesy than by anger, sarcasm and disrespect. “Breaches of judicial temperament “impair[ ] the public’s image of the dignity and impartiality of courts, which is essential to their fulfilling the court’s role in society.” (citations omitted)

Hat tip to the ABA Journal (Mike Frisch)

"Anybody Else Want To Mess With Me?"

A Kansas district court judge was censured for intemperate and undignified conduct during the voir dire of in a criminal trial. After one potential juror had indicated an unwillingness to believe the testimony of police witnesses, the judge required the juror to remain throughout the trial. The judge then addressed the jury pool as follows:

'All right. Anybody else want to mess with me?'

The judge continued to question potential jurors in a loud voice and later apologized to panel members for displaying anger and impatience with them. The Kansas Supreme Court concluded:

The respondent's failure to control her temper and frustrations and her conduct toward potential members of the jury in open court greatly detracted from the honor and dignity of the judiciary. Her actions negatively impacted the proper administration of justice in a felony criminal case over which she presided. While we recognize that the Commission's recommendation is not binding on this court, (citations omitted) our review of the entire record supports the Commission's recommendation that the appropriate discipline in the respondent's case is public censure.

An article from the web page of the Wichita Eagle describes the case and mentions two prior reprimands of the judge. (Mike Frisch)

Not An Infamous Crime

An attorney who had been convicted (and subsequently pardoned) for a drug offense that occurred when he was 17 years old is not disqualified from holding the position of Family Court Commissioner, according to the holding of the Delaware Supreme Court. He had been tried and convicted as a adult, but was admitted to the Delaware Bar and has been an honorable and productive member of the Bar. The court here concluded that the offense was not an "infamous crime," which would have disqualified him from the office. The court emphasized his age at the time of the offense in reaching its conclusion. (Mike Frisch)

Legal Post Mortem the Night After the Texas Execution That Wasn't

Posted by Alan Childress

I am flat wrung out a day after following minute-by-minute via emails the near-execution of Charles Hood in Texas, though I hope the twitter-like effort was worth it to some of our readers who were not getting updated info from regular media sources.   It may actually turn out someday that twitter will not just be used to catalog the next time a cat sneezes (OMG!).  But tired I am:  the case leaves not just a weariness of seeing a society too quick to judge humans and not quick enough to judge authority figures, but also a sense of sadness for all of us who expect more from judges -- and way more from a system meant to be about declaring guilt and innocence, or right and wrong, and not just powerful and powerless.

Please read some extra-inning thoughts on this very odd night, wonderfully stated the day after by Andy Perlman (plus replies by John Steele and me, in comments) over at LEF here. His post is an EXCELLENT post mortem analysis, with interesting and useful links, and there's a bonus:  a nice bibliography by Patrick O'Donnell in comments (wouldn't you just hate to be the one guy to write a book and no Patrick O'Donnell noticed?).  Over there, I comment on why everyone should be disappointed in this spectacle, not just knee jerk liberals.

Unequal Treatment Of Witnesses

The West Virginia Supreme Court of Appeals affirmed the grant of habeas corpus relief to a convicted defendant serving a life sentence. The basis? Both state and the defense called incarcerated individuals as witnesses. The state's witnesses were permitted to testify in civilian clothes; the defense witnesses were clothed in prison garb and shackled. The court concluded:

Under the unique facts of this case, where seven crucial defense witnesses testified before the jury in prison garb and shackles while the State's two key witnesses testified in civilian clothing and without shackles, it would be illogical to conclude that the witnesses' contrasting appearance did not appreciably impact the jury's assessment of the witnesses' credibility. As this Court pointed out in Allah Jamaal W., “[r]egardless of how credible the testimony of these witnesses may have been, . . . it [is] unlikely that the jury would find their testimony credible.” 209 W.Va. at 7, 543 S.E.2d at 288. As we held in syllabus point two of State v. Varner, 212 W.Va. 532, 575 S.E.2d 142 (2002), “'“[t]he right to a trial by an impartial, objective jury in a criminal case is a fundamental right guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution and Article III, Section 14 of the West Virginia Constitution.” Syllabus point 4, [in part,] State v. Peacher, 167 W.Va. 540, 280 S.E.2d 559 (1981).' Syllabus point 4, in part, State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994).” “And the question of whether a jury is impartial is dependent upon whether the jurors are free from bias or prejudice either for or against the accused.” State v. McClure, 184 W.Va. 418, 421, 400 S.E.2d 853, 856 (1990) (citing State v. Pratt, 161 W.Va. 530, 244 S.E.2d 227 (1978), and State v. Hatfield, 48 W.Va. 561, 37 S.E. 626
(1900)). Accordingly, the drastic contrast in the physical appearance of the parties' incarcerated witnesses - each of whom provided crucial testimony at trial - unfairly influenced the jury's judgment of the witnesses' credibility. As a result, Defendant's constitutional right to a fair trial was clearly violated. Accordingly, we affirm the lower court's order granting Defendant's petition for writ of habeas corpus.

(Mike Frisch)

Censure Too Harsh

The Nevada Supreme Court rejected a proposed censure of a Las Vegas municipal judge as unduly harsh and directed that the judge write a letter of apology and attend (at his own expense) a class in judicial ethics. The misconduct involved a defendant who was unable to appear for a court proceeding and sent his girlfriend in his stead. The following colloquy took place:

THE CLERK: The City of Las Vegas Municipal Court is now in session. The Honorable George Assad presiding. Please be seated.

THE COURT: City versus Joshua Madera. Okay. Where is Joshua?

UNIDENTIFIED SPEAKER: He’s actually—today he started his first day at work. That’s why he’s not here today. He’s requesting if he can just have 30 days to make that payment in full.

THE COURT: Well, the problem is he threatened someone with bodily harm, essentially.

UNIDENTIFIED SPEAKER: When was this, your Honor?

THE COURT: It was Friday. He threatened her with bodily harm, one of the court clerks.

UNIDENTIFIED SPEAKER: I—

THE COURT: So unless you want to get him down here real quick, we’re going to have to lock you up until he gets here. I think he knew that, so that’s why he sent you here in his place.

UNIDENTIFIED SPEAKER: I—I talked to the clerk on Friday, but I—

THE COURT: Who did you talk to?

UNIDENTIFIED SPEAKER: Some lady. She said that I could come into court for him. Didn’t—she didn’t say anything about him threatening a clerk.

THE COURT: And you don’t know who you talked to?

UNIDENTIFIED SPEAKER: No. I don’t recall, your Honor. You know what? Maybe I wrote it on the paper. I’ve got Debbie, extension [ ].

THE COURT: Well Debbie’s here and she says he didn’t talk to her. So—

UNIDENTIFIED SPEAKER: Okay. Maybe he (indiscernible)—

THE COURT: I mean, there might be another Debbie.

UNIDENTIFIED SPEAKER: I have no idea.

THE COURT: Is there another Debbie down here?

THE CLERK: (Indiscernible).

THE COURT: All right.

UNIDENTIFIED SPEAKER: I have no idea.

THE COURT: All right. Well, you’re going to have to go with my marshal in the back and make a phone call.

UNIDENTIFIED SPEAKER: Well—

THE COURT: Tell him you’re going to jail if he doesn’t get his butt down here—

UNIDENTIFIED SPEAKER: Okay.

THE COURT: —real fast.

Then:

            Chrzanowski [the girlfriend and unidentified speaker] followed the marshal, Raul Saavedra, to a back room, which included a desk and a phone, some seating, and two holding cells.  Chrzanowski called Madera, who could not come at that time.  Saavedra handcuffed Chrzanowski and placed her in the women’s holding cell.  Testimony at the Commission hearing indicated that this back room was quite busy during hearings, as it was used for telephone calls by defendants and others, for plea negotiations, and for arranging alternative sentencing such as work programs and house arrest.  The record further reflects that the courtroom itself was very busy, even while the court session was taking place.

The court found that the testimony of an expert on behalf of the judge was properly rejected:

Here, Professor Stempel’s affidavit, which was attached to Judge Assad’s prehearing motion and sets forth his proposed testimony, purported to evaluate the credibility of witnesses that had yet to testify (although they had given statements during the Commission’s investigation); determined based on the March 31, 2003, court session’s audiotape that Chrzanowski could not have been handcuffed in court because no “click” could be heard on the tape; weighed “evidence” that had not yet been admitted; and discussed issues that were irrelevant to those properly before the Commission, such as whether Judge Assad would have had jurisdiction to hold Chrzanowski in contempt, whether she was engaged in the unauthorized practice of law by appearing on Madera’s behalf, and the dismissal of Chrzanowski’s civil lawsuit.  Credibility determinations and weighing the evidence are tasks reserved to the Commission, and expert testimony on these issues would not have assisted the Commission to understand the evidence or resolve a disputed fact. Also, as noted above, much of the affidavit concerned matters that were irrelevant to the issues before the Commission, and thus it was not admissible. Accordingly, we conclude that the Commission did not abuse its discretion in refusing to admit Professor Stempel’s proposed expert testimony.

(Mike Frisch)

Judge Subject To Public Discipline For Conflicts Of Interest

The New