Legal Profession Blog

OK To Serve

The Judicial Ethics Advisory Committee of Florida has rendered an opinion on the following question:

The Inquiring Judge’s synagogue has a committee comprised of several members of the synagogue that review applications submitted by prospective members who assert that they cannot afford to pay full membership dues. An applicant may submit personal financial information to be reviewed by the synagogue committee to determine if the applicant qualifies for reduction of membership dues, and if so, by how much. The only personal contact that the synagogue committee has with applicants is when, in rare instances, applicants request a face-to-face meeting with the committee to present their case. Although the synagogue committee tries to keep its membership anonymous, the names of committee members can be determined if this information is sought.

The Inquiring Judge wants to know if a judge may be a member of this synagogue committee.

Answer: Yes.

(Mike Frisch)

     

CLE-Related Judicial Misconduct

A South Carolina magistrate judge was sanctioned for misconduct relaing to fulfilling his CLE obligations. The South Carolina Supreme Court described the misconduct as follows:

 In this judicial disciplinary case, respondent Magistrate Judge...admits altering a court order and a letter from the Commission on Continuing Legal Education and Specialization (hereinafter “CLE Commission”).  The record supports the recommendation of the Commission on Judicial Conduct (hereinafter “the panel”), and we retroactively suspend respondent.

Respondent failed to comply with Rule 510, SCACR and report his CLE hours for 2006-07 timely.  Therefore, this Court suspended respondent.  Subsequently, respondent complied with Rule 510.  Thus, the CLE Commission issued respondent a letter finding him in compliance and instructing him to contact this Court to be reinstated.  This Court then reinstated respondent by court order, and the court order specifically stated the reinstatement was not retroactive.

Respondent then retook the bench.  While conducting bond court, respondent was asked to submit evidence of his reinstatement to the county administrator.  Respondent faxed copies of the CLE Commission’s letter finding him in compliance and this Court’s order reinstating respondent.  The version of the letter and this Court’s order sent by respondent were altered.  Specifically, respondent removed the references that his reinstatement was not retroactive.  Respondent explains the alterations of these documents as an innocent attempt to obscure notes he made on the documents as he did not have time to obtain the originals.  Respondent admits he failed to notify the county administrator of the papers’ alterations.

The magistrate has been on interim suspension since October 12, 2007 and the court held that the served suspension was sufficient under the circumstances as a sanction. (Mike Frisch)

No Sanction For Judge

The Louisiana Supreme Court agreed with a finding of its Judiciary Commission that a judge had violated the Code of Judicial Conduct but rejected  the proposed public censure sanction because the "wrongdoing does not rise to the level of misconduct warranting the imposition of a disciplinary sanction." The judge sat in a high-volume drug court and had regularly ordered that defendants pay a fine for the benefit of the "I Care" drug program while serving on the program's advisory council. The fines totalled $83,550.00

The court states:

In making this decision, we rely on [his] unblemished record on the judicial bench. Moreover, any potential appearence of impropriety subject of these proceedings stems solely from his admirable personal and judicial efforts to improve his community through substance abuse prevention and education. While we in no way condone his actions and strongly caution him to refrain from similar judicial misjudgment in the future, we do not find his actions to rise to the level of sanctionable misconduct.

(Mike Frisch)

Drinks At Shanghi Red's Leads To Judge's Resignation

WGRZ.com reports on a judicial misconduct matter:

Erie County District Attorney Frank Sedita says State Supreme Court Judge Joseph Makowski and local attorney Anne Adams conspired to try and make a DWI case against Adams go away.

Last September, Makowski and Adams met for drinks at Shanghai Red's on the Buffalo waterfront.

Afterwards, Adams was driving home through Hamburg, with Makowski following behind her, when Adams was spotted driving erratically and was pulled over by police.

A breathalyzer test showed her blood alcohol level was more than twice the legal limit.

Despite that, Makowski in attempt to cover up the case, submitted a sworn statement to a judge saying that Adams' driving had been fine. He also stated that she had had only two drinks.

The following day, Adams, in her attempt to have the case against her dismissed, had her blood drawn.

By then, it showed just a trace amount of alcohol in her system, but Adams then claimed in a statement to the court that the blood had been drawn the night of her arrest.

Late Friday afternoon, Adams pled guilty to the DWI charge, as well another two charges related to her tampering with evidence (the blood test).

"Her conduct was disgraceful and she is now being held accountable for that conduct," said Sedita.

Makowski recanted his statement and resigned from the bench.

He will not face any criminal charges.

Scott Brown: "Knowing that Judge Makowski lied in his sworn statement, why not prosecute him?"

Sedita: "Under the law, if Judge Makowski chose to come before the grand jury and recant, there would be no criminal charges against him, so we fashioned a result where he recanted before the grand jury met, he must resign from the bench, and that means his reputation is disgraced."

Adams is scheduled to be sentenced in April, that sentence can range from probation, to two years in prison.

There's a chance that both Adams and Makowski could lose their licenses to practice law.

The bottom line says Sedita, "They tried to fix a case Scott, and they got caught."

This situation isn't sitting well with the local Mothers Against Drunk Driving organization.

Elizabeth Obad, The president of the Erie County M.A.D.D. chapter, calls this situation a disgrace and wants to see a stiff penalty for Adams when she is sentenced in April.

"We look up to our attorneys and our judges and expect them to enforce the law and I think it's horrible when someone who could have possibly been sitting on the bench and someone who was on the bench to do something like this," said Obad. "I think it's absolutely horrible and I would like to see some still penalties in this matter."

The proceedings before the New York Commission on Judicial Conduct leading to the judge's resignation from the bench are linked here and here. WIBV.com reports that the attorney was a former prosecutor and was sentenced to imprisonment for the driving incident. (Mike Frisch)

When Is Judicial Delay Sanctionable?

A very interesting decision of the New York Commission on Judicial Conduct addresses the question of when delay in issuing decisions by a judicial officer constitutes a basis for discipline. The judge had transitioned from part-time with a law practice to a full-time position. It was charged that he had "[f]ailed to render decisions in a timely manner in 47 cases notwithstanding that he had previously been issued a letter of dismissal and caution for delayed decisions." The judge had defended that a lack of resources had caused the delays, which contravened mandated time requiorements.

There are thoughtful concurring and dissenting opinions on the question of whether any or lesser discipline should be imposed. From the concurrence:

The debate between the dissent and the Commission's determination focuses on the niceties of the almost 20 year-old Greenfield decision and engages in an exhaustive comparison between the facts underlying Judge Gilpatric's misconduct and Justice Greenfield's excused neglect. Both analyses miss the forest for the trees. The issue posed by this case is whether the Court of Appeals will adhere to its Greenfield proclamation that even longer delays of sub judice decsions, absent defiance of administrative directives or nondisclosure of pending delayed cases, are NOT judicial misconduct. It seems clear that Greenfield's holding is too broad and not in the service of the canon of judicial ethics that requires every judge to "dispose of all judicial matters promptly, efficiently and fairly."

(Mike Frisch)

A Friend In Need

The New York Commission on Judicial Discipline closed a matter as a result of the resignation of a town court justice. The justice is barred from future judicial service.

The non-lawyer justice had stipulated that he presided over a small claims action involving a close friend and neighbor who was seeking unpaid rent on a trailer. The trailer was in another county, a fact that the justice could observe from his own home. Notwithstanding the jurisdictional problem, the justice gave a default judgment to his friend. The opposing party (Ms. Bump) did not appear. The justice told his friend "to do whatever he wanted with regard to Ms. Bump's trailer." He then mailed an adverse judgment to Ms. Bump directing her to remove the trailer or its ownership would transfer to his friend, knowing he lacked the authority to dispose of the trailer or grant other equitable relif in a small claims action." (Mike Frisch)

New Rules For Ohio Judges

From the web page of the Ohio Supreme Court:

The Supreme Court of Ohio today announced the adoption of several amendments to the Rules for the Government of the Judiciary (Rule II) that concern grievances filed against Supreme Court justices and grievances alleging campaign misconduct by any Supreme Court candidate (including incumbent justices).

The amendments become effective Jan. 1, 2010. The amended rules apply to any grievance filed on or after Jan. 1, 2010. Justices voted 7-0 in approving the amendments.

The most significant change to Gov. Jud. R. II provides for the appointment of trial court judges, by the Chief Justice of the Courts of Appeals Judges Association, to conduct hearings on formal allegations of misconduct by Supreme Court Justices or candidates. As outlined in the rule, the administrative judge of each appellate district would designate two full-time trial court judges (a total of 24) each year to be eligible to serve on a three-member hearing panel. For the first time trial court judges would be involved in the process, which until now has involved only appeals court judges.

This and other amendments are based in part on recommendations from a 2006 report by a Court of Appeals Judges Association ad hoc committee. Association members provided comments that resulted in revisions to the rules published for public comment in October 2008. The amendments also:

• Eliminate conflicts of interest that arise from a judge’s service on multiple review panels related to the same alleged misconduct.
• Limit the role of the Chief Justice of the association to the performance of ministerial functions and presiding over the final adjudicatory panel.
• Provide clearer standards governing the review of grievances and formal complaints.
• Provide procedural clarity and uniformity throughout the rule.
• Place time limits on investigations of misconduct.

Access the new rule.

(Mike Frisch)

Judge's Campaign Speech Draws Sanction, Dissents

On motions for rehearing by a disciplined judge and its Commission on Judicial Performance, the Mississippi Supreme Court withdrew an earlier opinion and suspended the now-former judge from office for one year. The allegations involved a speech before constituents in which the judge "expressed his disdain for the local Causacian mayor and his African-American appointees" and said:

White folks don't praise you [African-Americans] unless you're a damn fool. Unless they think they can use you. If you have your own mind and know what you're doing, they don't want you around.

The court majority found the statements sanctionable in that the judge's "disparaging insults went well beyond the realm of protected campaign speech expressing views on disputed legal and political issues and discussing the qualifications of the judicial office for which [he] was campaigning." The court majority rejected charges of perjury as that allegation had not been formally brought in the commission's charges against the judge. The court majority  further held that it had the authority to order removal of a judge who was no longer in office, overruling prior contrary authority.

There is a dissent from Justice Kitchens that condemns the comment but would not impose discipline. The justice finds that the statements were protected by the First Amendment: "his comments addressed a political issue, and not just any political issue, but the seminal political issue of this State's history: race."

A concurring/dissenting opinion of Justice Dickinson states that the judge's "malevolent, racist words should be offensive to all rational, fair-minded people. As judicial officers, however, we are required to follow the law. With the utmost respect to the justices comprising the majority, I cannot conclude that this Court today is following the law." He would hold that the state is powerless to punish speech of a qualified judicial candidate in an election year on a disputed political issue. The statement at issue here is thus protected under his formulation.  (Mike Frisch)

Like Ceaser's Wife

The New Jersey Advisory Committee on Judicial Conduct has recommended a public admonishment of a part-time municipal judge based on findings that the judge's law firm had made a series of four political contributions in the firm name. The judge had claimed that he was unaware of the contributions and should not be held vicariously liable for the acts of his law partner. The committee concluded that he "cannot avoid responsibility by simply contending that he was not aware of [the contributions]" which were in the form of checks drawn on the firm's account. The committee emphasized the importance of avoiding an appearence of impropriaty by judicial officers. (Mike Frisch)

Activist Judge Reversed

The Maryland Court of Appeals has reversed criminal convictions and ordered new trials in two separate cases that were tried before the same Baltimore City Circuit judge. The court held that the judge's "repeated and egregious behavior created a fundamentally flawed atmosphere, which prevented the defendants from obtaining fair and impartial trials." The court found plain error in both matters. Notwithstanding the lack of defense objection, the court "also concluded that the failure to object may only be countenanced in those instances in which the judge exhibits repeated and egregious behavior of partiality, reflective of bias..." The opinion quotes extensively from the transcripts of the trials.

No plaudits to the lawyers: "It is clear in both cases that neither prosecutors presented the cases well, nor did the defense attorneys adequately represent their clients."

There is a dissent that takes issue with the view that the judge overstepped his proper role and would affirm the convictions in both cases.

As an aside, the ABA Journal picked up on this case and identified the judge (the opinion does not), who just happens to be my first boss. (Mike Frisch)