Thursday, June 29, 2017

Only Judges May Judge Judges

The Wisconsin Supreme Court held that only the judiciary has the power to discipline judges

In creating an executive branch entity with authority to pass judgment and impose discipline on a judge's exercise of core judicial powers, the Wisconsin legislature violates the Wisconsin Constitution's structural separation of powers and invades a domain recognized for over two hundred years as the exclusive province of the judiciary. Neither the executive branch nor the legislature may reprimand or otherwise discipline a Wisconsin judge. The Wisconsin Constitution reserves such disciplinary powers for the supreme court alone. Nor may the legislature empower the executive branch to threaten any judicial officer with repercussions for exercising constitutional power vested exclusively in the judiciary.

...the legislature transgressed the constitutional boundaries of its powers by authorizing the Crime Victims Rights Board (the "Board") to investigate and adjudicate complaints against judges, issue reprimands against judges, and seek equitable relief and forfeitures through civil actions against judges. We therefore affirm the decision of the circuit court and hold that Wis. Stat. §§ 950.09(2)(a), (2)(c)-(d) and (3) and 950.11 (2015-16)1 are unconstitutional with respect to judges; accordingly, the Board's actions against Judge William M. Gabler are void.

The court describes at length the principles of an independent judiciary. 

Justice Abrahamson concurred and dissented.

The majority opinion contravenes basic principles of statutory and constitutional interpretation. Applying the canon of constitutional avoidance, I conclude that the challenged statutory provisions are easily amenable to a constitutional interpretation. The majority opinion's lengthy foray into the separation of powers analysis is unnecessary and inappropriate.

When a court addresses the scope of the judicial branch's power and the powers of the other branches of government, it must avoid an overzealous defense of the judiciary's power and must avoid appropriation of unchecked power in the judiciary.

The Crime Victims Amendment and the statutes demonstrate the legislature's attempt at a thoughtful, evenhanded approach to crime victims, accuseds, and judicial and executive branch functions. Is the drafting perfect? No. But perfect drafting is rarely the hallmark of any state or federal statute (or opinion of a court).

(Mike Frisch)

June 29, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Saturday, June 24, 2017

Vindictive Former Judge Suspended

The Maine Supreme Judicial Court has suspended a former judge for two years.

The charges

Count 1 alleged that then Judge-elect Nadeau’s directive to the Register of Probate of York County not to include seven attorneys on the court appointed  attorney list was motivated by his previous contentious relationship with those  attorneys, in violation of Judicial Canons 2(B) and 3(C)(4);

Count 2 alleged that Judge Nadeau’s removal of an attorney from cases to  which she had previously been appointed was motivated by her association  with an attorney with whom Nadeau had a contentious relationship, in  violation of Canon 2(A) and (B);

Count 3 alleged that—in a case in which he had recused himself— Judge Nadeau ordered an attorney to destroy a lawfully obtained public  document, in violation of Canon 2(A);

Count 4 alleged that Judge Nadeau’s abrupt overhaul of the Probate Court  schedule was motivated by his anger with the York County Commissioners  when his request for a pay increase was rejected, in violation of Canons 1, 2(A)  and (B), and 3(B)(8); and

Count 5 alleged that Judge Nadeau was, through oral and written orders, encouraging litigants before him to contact their county officials to lobby for  increased court funding, which would also increase his salary, in violation of  Canon 2(B).

Sanction

This is now the fourth time that Judge Nadeau has appeared before  us for ethical violations, and the third time for conduct that occurred while  serving in a judicial capacity. See In re Nadeau, 2016 ME 116, 144 A.3d 1161;  In re Nadeau, 2007 ME 21, 914 A.2d 71415; Bd. of Overseers of the Bar v. Nadeau,  Bar-05-03, 2006 Me. LEXIS 167 (Mar. 2, 2006). Here, his actions were often  carried out in an intemperate and vindictive fashion against former colleagues of his law practice and their associates. Attorneys’ reputations were harmed, and litigants before him were pressured to support his efforts to increase court  resources and his compensation. Judge Nadeau has not fully acknowledged the  intemperate nature of his decisions.

...This time, therefore, more severe sanctions are warranted. It  is hereby ordered that Robert M.A. Nadeau forfeit $5,000 and be suspended from the practice of law for two years...

(Mike Frisch)

June 24, 2017 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Monday, June 19, 2017

Never, Ever

The Ohio Board on Professional Conduct proposes a reprimand of a common pleas court magistrate who advised police of her judicial position when stopped for a suspected DUI

Respondent testified that she had had a few drinks, waited three hours before driving, thought he was fine, had committed to be the designated driver and promised her friend a ride home. She thought she was fine to drive. She will never, ever do that again.

She had advised the police that she was a judge, that her son was a Secret Service officer, that she had not flunked the field sobriety test and "would not be driving drunk."

The magistrate pled guilty to misdemeanor reckless driving. (Mike Frisch)

June 19, 2017 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (1)

Thursday, June 15, 2017

Mississippi Dismisses Ethics Charges Based On Judge's Use Of Social Media

The Mississippi Supreme Court dismissed ethics charges against a judge

    The record supplementation requested by the Court during oral argument should, and it hereby is, rescinded. The Court finds that no violation of the Mississippi Code of Judicial Conduct by the respondent, Forrest County Justice Court Judge Gay Polk-Payton, has been proven by clear and convincing evidence, and that these proceedings therefore should be, and they hereby are, dismissed with prejudice. The Commission shall bear the costs. Not Participating: Coleman, Beam and Chamberlin, JJ. Order entered.

Notably, the charges appear to be related to the judge's use of social media that was the subject of an anonymous complaint.

The judge had stipulated to misconduct.

The argument - linked below - is really worth watching. The judges are tough on the attorneys for both sides .

Eugene Volokh filed an amicus brief on behalf of the judge.

The Commission seeks to discipline Judge Polk-Payton for speech that other judges routinely engage in: promoting a book and using social media. These common activities do not threaten the integrity of the judiciary. Rather, they are valuable to voters who can evaluate that speech and use it to make informed decisions.

The Commission believes Judge Polk-Payton’s use of the Twitter handle “@JudgeCutie” is “undignified and demeaning” to the judicial office, but the handle conveys the judge’s personality to the public, which is essential for an elected judge. The Commission also objects to a photo on the cover of the judge’s book, which shows her in ordinary clothes with her robe partially on; it is not clear whether she is putting on her robe or taking it off, but neither action demeans the judicial office.  “Undignified” is a subjective judgment, and if anyone should enforce it, it should be the voters: If they find Judge Polk-Payton’s speech unbecoming to a judge, they will make that known come election time.

Moreover, social media use by judges is relatively new. States have not provided much guidance on its use, other than to uniformly conclude that it is generally allowed. The Mississippi Judicial Canons, which require “high standards of conduct,” make no mention of social media. Neither the Commission nor this Court has offered any clarification. Given the vagueness of the Canons, Judge Polk-Payton had no way of knowing that her speech was impermissible.

Hattiesburg American reports

After an afternoon of hearing oral arguments Tuesday, the Mississippi Supreme Court ruled Thursday in favor of a Forrest County judge accused of unethical conduct.

The Mississippi Commission on Judicial Performance accused Justice Court Judge Gay Polk-Payton of using her position as a judge to promote sales of her book and to further her music career.

Polk-Payton could not be reached for comment Thursday, but her attorney Oliver Diaz said the complaint was frivolous and should never have been filed.

"I think the speed with which the judges responded speaks for itself," he said. "It usually takes three, four or five months after oral arguments to decide a case.

"This is unprecedented and speaks to how completely frivolous it is. (The Supreme Court justices) wanted the public to know Judge Polk-Payton did not do anything wrong."

The court issued a one-paragraph statement in which the judges said they could find no wrongdoing on Polk-Payton's part.

"The Court finds that no violation of the Mississippi Code of Judicial Conduct by the respondent, Forrest County Justice Court Judge Gay Polk-Payton has been proven by clear and convincing evidence, and that these proceedings therefore should be, and they hereby are, dismissed with prejudice," the court ruled.

On Tuesday the commission's senior attorney Rachel Michel said an anonymous tip was filed regarding Polk-Payton and a photo of her either putting on or taking off her judge's robe on the cover of her book. 

The commission filed the complaint with the state judicial system in 2014.

The complaint also said the use of Polk-Payton's judicial status on her social media accounts, including her former handle, "JudgeCutie," violated the state's code of conduct for judges.

Archived proceedings: Mississippi Supreme Court hears oral arguments regarding Judge Polk-Payton

During the oral arguments, some of the justices pointed out other judges who had worn their robes on the covers of their books. Justice Jess Dickinson, himself an author and musician, said there needed to be something more to the claim than just her wearing a judge's robe.

 "We both have difficult jobs," Dickinson told Michel during a live stream of court proceedings. "But I'm looking at the allegation that gives me concern in this case, and I'm looking at the canon that it is based upon and that canon requires us to find by clear and convincing evidence that Judge Polk-Payton lent the prestige of her office to advance her private interests.

"I don't believe anybody does that simply by saying, 'I'm a judge.'"

Justice James Kitchens said he was concerned about who filed the anonymous complaint with the commission and what his or her motive was.

"This could be some political enemy of the judge or somebody she had sentenced or someone who has an ax to grind with her," he said. "We know nothing of the credibility or the motives of the person making the complaint."

Dickinson added that Polk-Payton should be lauded for some of the things she has done as a judge.

"I commend her for talking about being a judge and being interested in justice and interested in fairness and fair play in the courts," he said. "Some of it should be on the front page of The Clarion-Ledger."

Attempts to reach Michel for comment were unsuccessful.

Justices Dawn Beam, Josiah Coleman and Robert Chamberlin did not participate.

The Commission on Judicial Performance was ordered to pay all costs associated with the case.

A video of a musical performance by the judge is linked here . (Mike Frisch)

June 15, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, June 14, 2017

Permanent Disbarment Proposed For Battering Former Judge

The Ohio Board on Professional Responsibility recommends permanent disbarment for former Judge Lance Mason.

Cleveland.com reported on the underlying crimes

Former Cuyahoga Common Pleas Judge Lance Mason was sentenced to 24 months in prison Wednesday for beating his wife last year while driving down Van Aken Boulevard with the couple's children in the backseat.

Before delivering her sentence, visiting Judge Patricia Cosgrove reviewed images of Aisha Mason's bruised and battered face, and read from a police report that detailed how Mason punched his wife 20 times with a closed fist, smashed her head against the car's center console five times, and continued to beat her, bite her, and threaten her after she got out of the car.

Cosgrove also read from a report that detailed how the couple had separated earlier that year, and that Aisha Mason had asked her husband to attend counseling before she considered getting back together with him.

"There is not one person in this courtroom that doesn't carry a burden with them," the judge said in a courtroom packed with Mason's family, friends and supporters. "But you don't take it out on another human being."

Mason, 48, pleaded guilty to attempted felonious assault and domestic violence on Aug. 13, and his plea deal agreement included that he would serve some time in prison. 

According to Mason's attorneys, he submitted his resignation as judge on Tuesday. The Ohio Supreme Court officially suspended Mason from the bar on Sept. 3 for being a convicted felon. He had been temporarily suspended with pay while his case was pending, and a visiting judge is overseeing his cases. Now that his felony suspension is official, Mason is no longer collecting his salary of $121,000.

As a convicted felon, Mason will not be able to serve as judge in the future, though he could still practice law, depending on the outcome of disciplinary action by the Ohio Supreme Court.

Aisha Mason needed reconstructive surgery on her face to recover from a broken orbital bone. She filed for divorce two days after the incident. She also filed a lawsuit against her husband on July 29 for having caused her mental pain and anguish. Both cases are still pending.

She did not attend the sentencing hearing, though she did send a letter to the judge that was not read in court.

Several people spoke on Mason's behalf during the sentencing hearing, including his sister, Lynn, all three of his attorneys, several local religious leaders and restaurateur Tony George. All portrayed Mason as a good person who made a mistake that he deeply regrets and won't repeat. They said Mason had been dealing with the death of a parent, a child with Down syndrome, and a failing marriage. 

Attorney Fernando Mack, who represented Mason free of charge and attended college with the former judge, told the court that Mason is at his best as a father to his two daughters. The crowd responded loudly with shouts of "Amen," while Mason wiped tears from his eyes.

Mason told the court he takes responsibility for what happened.

"I make no excuses, I mean I beat my wife in front of my kids," he said. "I mourn the harm I did to my family."

The judge noted that Mason can reduce his sentence if he attends counseling and classes while in prison.

As Mason was led out of the courtroom in handcuffs, he told the crowd that he loves them and his wife.

"I'm good, I'm strong," he said.

In a statement following the sentencing, Cuyahoga County Prosecutor Timothy J. McGinty said the conviction is "not a cause for celebration."

McGinty and Mason had served on the bench together as judges. Mason initially asked for a special prosecutor to hear his case because of that, but his request was denied.

"It's a sad day," McGinty said. "He was a good judge and a friend, but he owes society this time. I am confident he will leave prison rehabilitated and will again be an asset to our community."

The Ohio Supreme Court has the final word. (Mike Frisch)

June 14, 2017 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, June 13, 2017

The Prestige

The New York Commission on Judicial Conduct has admonished a judge

Respondent has been a Judge of the Civil Court of the City of New York since 2011 and an Acting Justice of the Supreme Court, pt Judicial District, New York County, since 2015, having also served as an Acting Judge of the Family Court, Kings County, from 2011 to 2015. Her term expires on December 31, 2020. She was admitted to the practice of law in New York in 2000.

She had worked as a court officer for a number of years before assuming the bench.

Count One

in late May or early June 2013 respondent lent the prestige of her judicial office to advance the private interests of another by invoking her judicial title and judicial position in a letter she wrote on behalf of her childhood babysitter, L. S., to be filed in a court other than her own in connection with an application for relief that Ms. S. was making in that other court.

Court One

In the fall of 2014, as set forth below, respondent lent the prestige of her judicial office to advance the private interests of another by invoking her judicial title and judicial position in affirmations she wrote on behalf of her son, Michael Tineo, to be filed in the Appellate Division in connection with his criminal case.

Michael Tineo is respondent's adult son.

On November 26, 2004, Mr. Tineo was arrested in Suffolk County.

He was subsequently charged with serious crimes.

Respondent was deeply upset by the situation as a parent.

At the time of Mr. Tineo's arrest, respondent was employed as a court attorney for a judge of the Civil Court of the City of New York. She telephoned the Suffolk County Police Department in Yaphank and identified herself as an attorney, with the intent of representing Mr. Tineo. At a subsequent suppression hearing in 2005 in County Court, Suffolk County, the court held that respondent was not eligible to represent Mr. Tineo because of her employment status as a court attorney.

After the son was incarcerated

In the affirmation, which is attached as Exhibit 2 to the Agreed Statement of Facts, respondent inter alia identified herself as a judge, set forth a series of facts regarding her attempt to represent her son at the time of his arrest and asked the Court to "grant the relief sought." Although she did not specify the "relief sought" in the body of her affirmation, it is evident from the affirmation's title, and respondent hereby acknowledges, that by "relief sought" she meant the court should grant her son's petition for habeas corpus.

The judge was contrite and cooperative but

On two occasions respondent lent the prestige of her judicial office to advance the private interests of another by invoking her judicial title and position, first in a letter on behalf of a family friend to be filed in connection with a motion to vacate the friend's conviction, and subsequently in two affirmations on behalf of her son to be filed in connection with his petition for a writ of habeas corpus. Such conduct is inconsistent with well-established ethical standards...

Respondent's letter on judicial stationery in support of her friend and former caregiver, which was filed in connection with the friend's motion to vacate a nine year old misdemeanor conviction, is a classic "character letter," providing unqualified support for her friend bolstered by the clout of her judicial status. Describing her friend as "part of my family," referring to her presence at family functions and in family photos, and providing details of their close relationship over several decades and their past and present contacts, respondent's letter makes no reference to the pending motion, her friend's conviction or the facts underlying her case, but its purpose is crystal clear: to influence the judge who would consider the motion to give it favorable consideration. When asked by the friend's lawyer to provide such a letter, respondent should have considered that she was likely asked to write, at least in part, because the prestige of her office would give particular clout to a letter of support, and it could be inferred that shecooperated in that effort by using her judicial stationery and by making gratuitous references in the letter to her judicial status (e.g., noting that her friend had been invited to but could not attend her swearing-in ceremony). As the record indicates, respondent wrote the letter nearly two weeks after being asked to do so by her friend's lawyer, giving her ample time to consider the request, research the subject and consider the ethical implications.

(Mike Frisch)

June 13, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Friday, June 2, 2017

Facebook Post Draws Admonishment For Judge

The Orange County Register reports on a sanction imposed on a judge in part for a Facebook post

An Orange County Superior Court judge was admonished by a state watchdog agency for making an inappropriate comment about a judicial candidate on Facebook and remaining Facebook “friends” with attorneys appearing before him in court.

In a Wednesday statement, the Commission on Judicial Performance publicly admonished Judge Jeff Ferguson for violating the Code of Judicial Ethics.

The agency said Ferguson posted a comment “with knowing or reckless disregard for the truth of the statement.”

On April 26, 2016, an attorney vying for a judicial seat against Orange County Superior Court Judge Scott Steiner posted a statement on the North Orange County Bar Association Facebook page.

The candidate wrote, referring to Steiner’s censure by the commission in 2014 for allegedly having sex in his chambers with two of his former law students: “Scott Steiner uses his office for sex and yet so many aren’t concerned, crazy politics!”

Judge Ferguson, in support of Steiner, wrote in response that the candidate “has sex with defense lawyer whike [sic] shw [sic] is a DA on his cases and nobody cares. Interesting politics.”

Ferguson removed the comment after the candidate responded to the post by writing: “I’m sure The Judicial Commission of Performance would love to know about your blogging!!”

The candidate lost the race to Steiner, who was re-elected last year.

The commission said Ferguson “undermined public respect for the judiciary and the integrity of the electoral process” in his Facebook post.

“The judge claimed to be relying on ‘commonly known information’ from many years ago when he made his post but he could provide no factual support for this reference,” the agency wrote, adding that the candidate and the defense attorney denied any intimate involvement while working on the same cases.

The agency said the judge acknowledged that he was wrong to write the post and recognized that it fell outside the bounds of professionalism.

The judicial commission also admonished Ferguson for being Facebook friends with three Orange County criminal defense attorneys who had appeared regularly before him in court. The judge “unfriended” the attorneys after he was contacted by the commission.

Paul Meyer, Ferguson’s attorney, said in a statement: “Judge Ferguson’s quick, late-night retort was posted for only a few minutes before he voluntarily removed it. Judge Ferguson again apologizes for his thoughtless comment.”

Ferguson was elected in 2014 for a term expiring on Jan. 4, 2021.

The admonishment is linked here.

The commission found that Judge Ferguson's post claiming that Ms. Schatzle was having sex at the time, or had sex in the past, with defense attorney while she was prosecutor on his cases was made with knowing or reckless disregard for the truth. Ms. Schatzle and the defense attorney referred to in Judge Ferguson's post deny any intimate involvement while they were appearing on the same cases. In his response to the preliminary investigation letter from the commission, Judge Ferguson stated that many years ago Ms. Schatzle was frequent subject of discussion for her intimate relationship with the defense attorney, and when he saw her post, he "immediately thought of this commonly known information, and without thought repeated it." Judge Ferguson could provide no factual support for his reference to "commonly known information" that Schatzle and the defense attorney appeared on the same cases during the time they were in an intimate relationship. He submitted declaration from one attorney who purportedly had knowledge of the relationship. The attorney admitted having no evidence that Ms. Schatzle and the defense attorney were working on opposite sides of cases while involved in an intimate relationship. Judge Ferguson acknowledged that he was wrong to write the post, recognized that it fell outside the bounds of professionalism and the decorum expected of bench officer, and apologized for his conduct.

On the ethics of friends

For period of time after becoming judge, Judge Ferguson was Facebook friends with Orange County criminal defense attorneys Jeffrey D. Kent, Ray Dinari and Bob Hickey while they had cases pending and appeared regularly before him in court. The judge did not disclose that he was Facebook friends with these attorneys.

Noting a 2010 opinion

Judge Ferguson stated he agrees with the CJA opinion and that he unfriended the attorneys promptly after being contacted by the commission concerning this matter.

(Mike Frisch)

June 2, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, June 1, 2017

Judge May Attend Diversity Seminar

The Florida Judicial Ethics Advisory Committee opines

Opinion Number: 2017-10
Date of Issue: May 16, 2017

ISSUE

May a judge attend a private organization’s seminar, that is neither court nor bar association sponsored, regarding diversity and racial equality at the judge’s own expense?

ANSWER: Yes.

The inquiring judge has been invited to attend a seminar that will focus on diversity and racial equality and will pay the seminar fee personally. The seminar is presented by a private organization and is not sponsored by any court or bar association. Because the JEAC members saw no ethical issues presented by attending such a seminar, we inquired further of the judge. The inquiring judge wanted to ensure that attendance at this seminar would not be viewed as the judge being partial.

As we recently noted, diversity training is mandatory for judges, and participation in programs is typically permitted and encouraged. Fla. JEAC Op. 17-04; see also Fla. JEAC Op. 03-01 (stating that judge may serve in leadership role on nonpartisan board to improve community race relations); Fla. JEAC Op. 93-22 (stating that a judge may participate in group project called “Help Stamp Out Hate” that was intended to promote positive intergroup relations, greater intergroup understandings, and included a cross section of religions, races, and ethnicities). The inquiring judge is aware of Canon 3B(2), which requires judges to be faithful to the law, and Canon 3B(5), which requires judges to perform judicial duties without bias or prejudice and prohibits manifesting favorable or unfavorable racial, ethnic, religious, or other bias or prejudice by words or conduct. Because the JEAC does not evaluate seminars or speakers, each judge must determine whether the seminar he or she wishes to attend is appropriate.

(Mike Frisch)

June 1, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, May 31, 2017

Save The Last Dance For Me

The South Carolina Supreme Court has suspended a magistrate for 45 days

On February 9, 2016, respondent attended a meeting of the Newberry Cotillion Club. At the conclusion of the meeting, respondent and another attendee engaged in a verbal disagreement that escalated into a physical altercation. Both respondent and the other attendee suffered minor injuries during the altercation...

We find respondent's misconduct warrants a forty-five (45) day suspension from judicial duties. We therefore accept the Agreement and suspend respondent from office for forty-five (45) days.

The State noted

The two-page opinion gave few details of the fracas, in which bystanders had to pry Johnson off a man he was apparently getting the best of in what was apparently a wild, anything-goes fight.

But The State newspaper obtained a police incident report of the Feb. 9, 2016, matter from the Newberry police department.

The report, written by an officer who interviewed witnesses, including the man whom Johnson struck, said Johnson and another man first exchanged heated words.

 Then, “Mr. Johnson jumped out of his seat and began assaulting him by head butting him, hitting him with his fist, and trying to gouge his eyes out,” the report said.

“While he was being assaulted, he grabbed Mr. Johnson by his (crotch) in hopes that it would get him off of him” but Johnson “kept attacking him,” the police report said. Meanwhile, other men were trying to pull Johnson off the man.

The sanction was imposed by consent. (Mike Frisch)

May 31, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Friday, May 26, 2017

Suspension And Reprimand In Vermont

The Vermont Supreme Court has publicly reprimanded a former judge

This matter was initiated based on media reports of allegations that former assistant judge Paul Kane may have engaged in improper conduct regarding the assets of his uncle’s wife, Katherine “Kay” Tolaro. On February 22, 2016, the Board initiated an investigation into these allegations. On February 25, 2016, Mr. Kane agreed to step down from his position during the pendency of the investigation. After the Board’s initial inquiry pursuant to the Rules of Supreme Court for Disciplinary Control of Judges (hereinafter R.S.C.D.C.J.) 7(1), Attorney Ian P. Carleton was appointed to serve as Special Counsel to investigate the matter further. Attorney Carleton filed a formal complaint on June 27, 2016, alleging that Mr. Kane violated several Canons of the Vermont Code of Judicial Conduct. Mr. Kane retained Attorney Melvin Fink as his counsel and filed his answer on July 26, 2016. The Board held an evidentiary hearing on March 20-22, 2017.

Findings

Mr. Kane’s treatment of the loan repayments as his own, his lack of forthrightness with the estate administrators, his intentional misleading of attorneys Moore and French, and his hiding and withholding of the $10,000 all demonstrate that Mr. Kane failed to observe high standards of conduct such that his actions diminished the integrity of the Judiciary. Further, his intentionally misleading testimony at the November 5, 2015 hearing demonstrated a failure to act in such a way to promote public confidence in the integrity of the Judiciary. In fact, his continued failure to inform the court that he had given intentionally misleading testimony demonstrates a continuing failure to observe the high standards of personal conduct and a continuing failure to act in a way that promotes public confidence in the integrity of the Judiciary. Taken as a whole, Mr. Kane’s treatment of these loans during the time in which he was a candidate for, and holder of, the office of assistant judge demeaned the judicial office.

It was established by clear and convincing evidence that Mr. Kane intentionally filed a facially implausible claim. The circumstances demonstrate Mr. Kane’s conduct was intentional for several reasons. First, he claimed that he was providing services to Ms. Tolaro 159 hours out of 169 hours in a week, for 135 weeks, despite the fact that he had a full-time job and had previously indicated in emails that only Mrs. Kane was providing care for Ms. Tolaro. Second, even if the 159 hours was an accurate weekly estimate, the claim still attempted to double-charge the estate for his alleged services rendered by also claiming he was owed for management services provided five hours per week for 104 weeks. Third, the claim included a request to be reimbursed $31,827.51, which he had already received from the Jackson annuity. Fourth, the claim included the 159 hours of care for both himself and his wife, even though his wife was deceased and her estate was closed. Mr. Kane reviewed these figures and still signed the statement of claim.

Even if the Board where to find that these errors were mistakes, which the Board does not so find, it is undisputed that most of these errors have not been brought to the attention of the Probate and Civil Court, even though he filed an amended claim, and despite the fact that it has been months since Mr. Kane became aware of these errors...

It was established by clear and convincing evidence that Mr. Kane failed to protect Ms. Tolaro’s assets in the Jackson and Great American annuities during the time he was subject to the Code. It is not the Board’s responsibility to determine the propriety of Mr. Kane using his POA to take out the annuities and list himself as the beneficiary; that conduct occurred before he became subject to the Code. However, to the extent that Mr. Kane believed the proceeds of the annuities belonged to Ms. Tolaro’s estate, as he testified to the Board, he was obligated to provide the proceeds to the estate. Instead, he kept the Jackson annuity proceeds in his personal checking account between July and October 2014, when he was subject to the Code.

Sanction

Special Counsel seeks sanctions to the fullest extent of the Board’s authority. He asserts that this can include an immediate suspension, a public reprimand, and the barring of Mr. Kane from serving as a judge for life. Mr. Kane contends that his resignation and a public reprimand briefly stating the violations of the Canons is sufficient...

In the Board’s unanimous judgment, the appropriate sanction for Paul Kane’s violation of Canons 1, 2A, 4A(2), and 5B(2) is the immediate and indefinite suspension from judicial office, a public reprimand, and a prohibition on his ever holding judicial office in Vermont. Although Mr. Kane and Attorney Fink represented that he has submitted his resignation to several officials, they did not provide the Board with proof that Mr. Kane had actually resigned. Therefore, an immediate suspension is appropriate. Moreover, because a formal complaint was filed, a public reprimand is required.

Brattleboro Reformer reported that he resigned his judicial office.

In his resignation letter emailed to the media, Kane noted that following Tolaro's death he was "attacked in the news with words such as stole/siphoned and bilked. These were all in reference to my handling of the affairs. ... Too much misinformation has been printed with seemingly no remorse. I am not going to argue my probate case nor my alleged ethical misconduct in the newspaper, but I will state that money from the Estate is intact and though I do not believe I breached any Ethical Canon, I will be stepping down from my elected position with great sadness. Though I was naive to some fiduciary responsibilities and did not fully understand and carry out all (Power of Attorney) statutes, I find it hard to believe that the press can print anything they want without repercussion."

Kane also wrote that his integrity, honesty and reputation have been challenged due to the perception that he had done something wrong in the handling of the Tolaro estate.

"I am beat emotionally/physically and financially. I do not think I have fight left in me. Therefore I am stepping down from my position of Assistant Judge to stem any further judicial dishonor that may be perceived," he wrote. "I do this with great sadness but without shame or guilt."

Seven Days (Vermont's Independent Voice) covered the probate case. (Mike Frisch)

May 26, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Saturday, May 20, 2017

A Parent Misconduct Leads To Removal Of Non-Attorney Justice

A press release from the New York Commission on Judicial Conduct summarizes an  order of removal

 The New York State Commission on Judicial Conduct has determined that J. Marshall Ayres, a Justice of the Conklin Town Court, Broome County, should be removed for lending the prestige of his judicial office to get his daughter’s traffic ticket dismissed and for trying to influence a County Court Judge to uphold restitution orders he had issued in a separate, unrelated case.

In 2015, after learning that his adult daughter had been issued a traffic ticket for using a cell phone while driving, Judge Ayres made two back-channel attempts to have the case transferred to a different judge because he believed the assigned judge could not handle the case fairly. When those attempts failed, Judge Ayres, who is not an attorney, attended a pre-trial conference with his daughter and acted as her advocate, attempted to intimidate the prosecutor and invoked his judicial position while arguing that the ticket should be dismissed.

In its determination, the Commission stated that Judge Ayres violated ethical standards when he intervened in his daughter’s case and that "viewed in their totality," the judge’s actions, "coupled with [his] continuing insistence that his actions were appropriate, ‘demonstrate[] an unacceptable degree of insensitivity tothe demands of judicial ethics.’" The Commission was not persuaded by the judge’s repeated insistence that he was "acting as a parent" and not as a judge.

The Commission also found that, in a case unrelated to his daughter, Judge Ayres sent eight unauthorized letters – five of which were ex parte – to the County Court Judge who was handling the appeal of restitution orders Judge Ayres had issued. The Commission stated that Judge Ayres’ conduct was "highly improper" and that he "abandoned his role as a neutral arbiter and became an advocate, repeatedly telling the court that the appeal lacked ‘merit’ and should be dismissed and advancing factual and legal arguments in support of his claims while making biased, discourteous and undignified statements about the defendant and his attorney."

In determining that Judge Ayres should be removed from office, the Commission stated that even at the oral argument, Judge Ayres "still lack[ed] an understanding of why his conduct was improper." The Commission noted that the judge’s "failure to recognize the impropriety of his actions and to modify his behavior when ethical concerns were brought to his attention exacerbates the underlying misconduct." The Commission concluded that "in our view, [Judge Ayres’] multiple efforts to influence the disposition of his daughter’s ticket, coupled with the additional misconduct and the aggravating factors presented here, demonstrate that he is ‘not fit for judicial office.’"

The purported concern over fairness had to do with litigation brought by the judge's former court clerk, who was the spouse of the judge assigned to the cell phone case.

This action was commenced by plaintiff, a former court clerk of the Town Court of Conklin, seeking damages for violations of Civil Service Law § 75-b (The Whistleblower Statute), slander and libel, mental and emotional trauma, anguish and humiliation, as well as punitive damages resulting from her termination. 

By way of this motion, defendants have collectively moved for dismissal of this action on the grounds of documentary evidence (CPLR § 3211 [a] [1]), violation of the applicable statute of limitations (CPLR § 3211 [a][5]), failure to state a cause of action (CPLR § 3211 [a] [7]), lack of personal jurisdiction (CPLR § 3211 [a][8]), failure to state any culpable conduct by the Town of Conklin, that the statements alleged are not defamatory, and that defendants are protected by an absolute and/or qualified privilege...

In January 2007, plaintiff was hired as court clerk for the Conklin Town Court by then Town Justice, J. Michael Bishop. On January 1, 2009, Justice J. Marshall Ayres took office as Justice for the Conklin Town Court and plaintiff remained as Court Clerk.

Suffice it to say that disagreements arose between plaintiff and Justice Ayres regarding his handling of court cases the details of which are not pertinent to the issues before this court. Plaintiff states that she reported Justice Ayres to the Town Supervisor, as well as the Office of Court Administration, both of which allegedly told her to deal directly with Justice Ayres.

On September 24th, 2009, plaintiff alleges that she was talking with the Town Supervisor when Justice Ayres approached her and informed her that she was fired.

The dismissal of the case was affirmed. (Mike Frisch)

May 20, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, May 18, 2017

Ethics Complaint Filed Against Ohio Justice

From Scene & Heard (hat tip Ohio Supreme Court web page)

ProgressOhio filed a formal ethics complaint over Ohio Supreme Court Justice Sharon Kennedy's recent pro-life messaging, joining newspaper editorial boards around the state in urging her to recuse herself from an upcoming abortion clinic case.

The crux of the matter is a March 17 fundraising event for Greater Toledo Right to Life. Kennedy spoke at the event and helped generate revenue for the organization. Greater Toledo Right to Life has historically used part of its budget to lobby the Statehouse to legislate abortion restrictions and, ultimately, to shut down abortion clinics. Kennedy, based on past campaign literature, is opposed to abortion practices.

Days prior to the event, Capital Care Network of Toledo landed in the cross-hairs of the Ohio Supreme Court.

At issue is the constitutionality of an Ohio law that mandates transfer agreements between private hospitals and abortion clinics. A Lucas County judge and a state appeals court ruled that the law is unconstitutional. (Capital Care Network of Toledo has a transfer agreement with a hospital at the University of Michigan, but not with a private hospital in Ohio.) The case was kicked up to the Ohio Supreme Court, which on March 15 agreed to hear it.

"Justice Kennedy had the option of cancelling her speech to Right to Life – or
recusing herself from hearing the case," ProgressOhio staffers write in the group's ethics complaint. (Greater Toledo Right to Life played a supportive role in the transfer agreement legislation.) To date, she has not recused herself.

Kennedy responded: “For the past 6 years, I have appeared at numerous civic organizations to speak about the founding of this republic, the Constitution, and the separation of powers. In December 2016, an individual who had heard me speak at two previous events invited me to speak to a civic organization he was affiliated with for breakfast. I treated that request in the same manner as I would treat any request.”

(Mike Frisch)

May 18, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, May 9, 2017

Judge Censured

The North Carolina Supreme Court has censured a judge for drunk driving and a belligerent attitude

On 25 April 2016, the Commission Counsel filed a Statement of Charges against Respondent alleging that he had

engaged in conduct inappropriate to his judicial office when, on December 16, 2015, he drove his vehicle recklessly and while substantially impaired, putting at risk his own life and the lives of others [and that] Respondent’s belligerent, offensive, and denigrating behavior towards the responding law enforcement officers and emergency personnel was outrageous and unbecoming of a judicial officer, bringing into question whether it is appropriate for the Respondent to continue to serve as an Emergency Judge...

Respondent filed an answer in which he admitted the factual allegations in the Statement of Charges and expressed remorse “for this uncharacteristic lapse in judgment.” On 2 August 2016, Respondent and Commission Counsel filed a number of joint evidentiary, factual, and disciplinary stipulations as permitted by Commission Rule 22 that tended to support a decision to censure Respondent. Also, Respondent “voluntarily resigned his commission as an Emergency Judge, and agree[d] not to seek another commission in the future.” On 12 August 2016, the Commission heard this matter.

The sanction implicated both the driving and the attitude

The clear, cogent and convincing evidence supporting the Commission’s findings of fact show[s] that Respondent engaged in belligerent, offensive and denigrating behavior towards local law enforcement and emergency personnel as they executed their official duties and attempted to assist Respondent during the incident underlying these proceedings.

The court

After careful review, this Court concludes that the Commission’s findings of fact, including the dispositional determinations set out above, are supported by clear, cogent, and convincing evidence in the record. In addition, we conclude that the Commission’s findings of fact support its conclusions of law. As a result, we accept the Commission’s findings and conclusions and adopt them as our own. Based upon those findings and conclusions and the recommendation of the Commission, we conclude and adjudge that Respondent should be censured.

The News & Observer reported on the matter.

LaBarre, 71, was on the bench in Durham, either as a District Court Judge or Superior Court Judge, from the late 1970s until 2002. After that, he served as an emergency judge who was called back to the bench on occasion.

(Mike Frisch)

May 9, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, May 4, 2017

Defending Your Judgeship

The Florida Supreme Court sanctioned a judge for a misrepresentation in a campaign ad

[Then-attorney Shepard’s] selective editing of the [Orlando Sentinel’s] 1994 endorsement, in context, was much more than a matter of inexact punctuation, or a mistake. . . . [Then-attorney] Shepard believed Mr. Katz to be unworthy of judicial office, and that any action she undertook to defeat him was justified. In doing so, she knowingly misled the public by campaign literature which implied that she was endorsed by the Orlando Sentinel, when this was untrue.

Judge Shepard asserts that Canon 7A(3)(e)(ii) is unconstitutional as applied to her judicial campaign advertisement. Specifically, Judge Shepard claims that she cannot be punished for distributing four true statements regarding her reputation for character and integrity and correctly attributing those statements to the Orlando Sentinel. But the so-called “four true facts” were distorted and misrepresented because they were taken out of context. Judge Shepard violated Canon 7A(3)(e)(ii)’s “other fact” clause by “knowingly misrepresent[ing] facts” surrounding the Orlando Sentinel’s 1994 endorsement in her judicial campaign advertisement. In re Judge Kimberly Michele Shepard, No. 14-488, at 22 (Fla. Jud. Qual. Comm’n June 9, 2016). Then-attorney Shepard “knowingly,” id. at 19, and “deliberate[ly],” id. at 13, deleted from the advertisement “the intervening sentence . . . of the paragraph of the [Orlando Sentinel’s 1994] endorsement . . . without any indication,” id. at 9. That sentence stated: “She has legislated effectively.” Id. at 5 (emphasis omitted). The advertisement thus falsely purported to quote language from the endorsement verbatim when, in fact, it “was substantially edited to delete all reference to [then-attorney] Shepard’s legislative service.” Id. at 9. The record on review further demonstrates that then-attorney Shepard knew how to use, and used, an ellipsis to indicate an omission within a quotation on the opposite side of the same advertisement. Additionally, the 1994 date of the Orlando Sentinel endorsement and the end sentence of the paragraph of the endorsement relating to her legislative service were omitted from the advertisement. As explained by the Hearing Panel, “The Judge’s selective editing of the [Orlando Sentinel’s] 1994 endorsement, in context, was much more than a matter of inexact punctuation, or a mistake. . . . [Then-attorney] Shepard believed Mr. Katz to be unworthy of judicial office, and that any action she undertook to defeat him was justified.” Id. at 15. The First Amendment does not protect such knowing misrepresentations of fact by candidates for judicial office. 

The court rejected a host of due process contentions

We conclude that clear and convincing evidence supports the Hearing Panel’s finding that Judge Shepard violated Canon 7A(3)(e)(ii). At the final hearing, the Hearing Panel received and accepted into evidence the judicial campaign advertisement at issue and the Orlando Sentinel’s 1994 endorsement. Then-attorney Shepard’s advertisement purports to quote language from the Orlando Sentinel’s 1994 endorsement verbatim. It does not. The intervening sentence of the paragraph of the 1994 endorsement relating to her legislative service was deleted from the advertisement without any indication. Additionally, the 1994 date of the Orlando Sentinel endorsement and the end sentence of the paragraph of the endorsement relating to her legislative service were omitted from the advertisement...

Judge Shepard disclaimed any intent to deceive or mislead. However, after considering the evidence and the testimony of the witnesses, the Hearing Panel found that then-attorney Shepard knowingly misrepresented facts surrounding her 1994 endorsement in her advertisement. The Hearing Panel specifically found that then-attorney Shepard knowingly and deliberately deleted from the advertisement the intervening sentence of the paragraph of the 1994 endorsement relating to her legislative service without any indication and that she omitted from the advertisement the 1994 date of the Orlando Sentinel endorsement. Then-attorney Shepard also omitted from the advertisement the end sentence of the paragraph of the 1994 endorsement relating to her legislative service. As explained by the Hearing Panel, then-attorney Shepard’s selective editing of the 1994 endorsement, in context, was much more than a matter of inexact punctuation, or a mistake. The Hearing Panel concluded that then-attorney Shepard believed her opponent to be unworthy of judicial office and that any action she undertook to defeat him was justified. A review of the record thus demonstrates that clear and convincing evidence supports the Hearing Panel’s finding that Judge Shepard violated Canon 7A(3)(e)(ii).

Sanction

Judge Kimberly Michele Shepard is hereby suspended without pay for ninety days from her duties as a judge of the Ninth Judicial Circuit. We order Judge Shepard to pay investigative costs and the costs of these proceedings, and we remand this case to the JQC for a determination of the amount of such costs. We also command Judge Shepard to appear before this Court for the administration of a public reprimand at a time to be set by the Clerk of this Court.

The Orlando Sentinel reported on the hearing.

Shepard's presentation to the panel sometimes seemed to veer off track. In openings, she compared her plight to the 1991 movie "Defending your Life," an Albert Brooks film in which the main characters goes to "Judgment City" after he dies.

And in closings, Shepard used a visual aid of the viral dress that polarized people over its color scheme in an online image — was it blue and black or gold and blue? — to show her case was all about perception.

"Having your integrity attacked because you quoted a source who said you had integrity is no small matter," she said, calling the experience "painful."

In the 2014 election, Shepard defeated opponent Norberto Katz, a child-support hearing officer, with 60 percent of the vote. She is serving a six-year-term on the bench with an annual salary of more than $146,000.

(Mike Frisch)

May 4, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Monday, May 1, 2017

Shoved Off The Bench

The Indiana Supreme Court accepted a judge's resignation with a reprimand

Respondent is not a lawyer. At about 5:30 p.m. on August 16, 2016, he went to the Dunkirk Police Department for a meeting with City of Dunkirk Mayor Gene Ritter (“Mayor”) and Dunkirk Chief of Police Dane Mumbower (“Chief Mumbower”) to discuss several issues of conflict between the police department and the city court. Early in the meeting, Respondent began having a heated verbal exchange with Chief Mumbower, who started to leave the meeting. The heated exchange continued, and Respondent shoved Chief Mumbower in the midsection. The Mayor calmed both men down and asked Chief Mumbower to stay to discuss the matters of concern that had prompted the meeting, and the meeting continued until about 7:38 p.m.

The Jay County Sheriff’s Office investigated the incident a few days later. Then on September 29, 2016, Respondent was charged in Jay Superior Court with Battery Against a Public Safety Official as a Level 6 felony in case number 38D01-1609-F6-000165. Respondent pleaded guilty to the charge under a plea agreement providing for the conviction to be treated as a misdemeanor at sentencing. At sentencing, the trial court entered judgment of conviction against Respondent for Battery Against a Public Safety Official as a misdemeanor and sentenced him to 365 days in the Jay County Jail, all suspended to one year of probation, with 100 hours of community service to the U.S. Department of Veterans Affairs as a condition of probation.

Respondent and the Commission agree that, by being convicted for Battery Against a Public Safety Official, Respondent violated Code of Judicial Conduct Rule 1.1 requiring judges to comply with the law, and Rule 1.2 requiring judges to avoid impropriety and to act at all times in a manner that promotes public confidence in the integrity of the judiciary.

The parties cite no facts in aggravation. In mitigation, they agree that Respondent self reported his misconduct; that he cooperated with the Commission during its investigation; that he actively sought and has continued treatment to address some of the underlying issues that resulted in his misconduct and continues to work with his counselor; and that he is remorseful for his conduct. They also agree that under the circumstances, the appropriate sanction is a public reprimand on the condition that Respondent will tender his resignation as the Dunkirk City Court judge effective April 28, 2017, that he shall not be eligible for future judicial service, and that he pays the costs of this proceeding. The Court agrees with the parties.

(Mike Frisch)

May 1, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Friday, April 28, 2017

Field Of Honor

From the Florida Judicial Ethics Advisory Committee

ISSUE

May a judge submit a letter to a municipality supporting the dedication of a little league baseball field in the name of the judge’s deceased former bailiff?

ANSWER: Yes.

FACTS

The judge’s former bailiff recently passed away. During his life, he was very active in little league baseball. The former bailiff’s family is petitioning the city to dedicate one of its little league baseball fields in his name. The City Council has suggested the family provide letters of support from the community, and the inquiring judge has been asked to write a letter supporting dedication of the ball field. The inquiring judge has certified that there is no solicitation of monetary contributions or other donations associated with the request to the city and that the judge’s letter will not be used for any of those purposes.

Reasoning

The type of letter involved in this inquiry is more akin to those letters that are allowed by the Code and by the JEAC opinions referred to above. This letter will contain the judge’s recommendation, based solely upon the judge’s personal knowledge of the deceased bailiff. This letter will not be sent in a matter where there is an adjudicatory or investigative proceeding. At most, the letter may be considered to be tangentially related or appealing to a government body which will decide to bestow an honorary title (a privilege) in memory of a deceased person. However, this is not the type of “privilege” contemplated by either the Code or the JEAC opinions. The prohibited type of privileges are those which will benefit a living individual or ongoing business interest who may be seeking to be granted a benefit or license the likes of which, if awarded, would bestow on petitioner a legal right. See, e.g., JEAC Op. 13-08. The decision in the subject matter for which the letter is to be used, rests solely upon the discretion of the city council and would not bestow any rights or privileges of that sort.

In conclusion, this Committee finds that the inquiring judge may write a letter to the city council based upon the judge’s personal knowledge.

(Mike Frisch)

April 28, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Friday, April 21, 2017

Dunk A Judge

The South Carolina Advisory Committee on Standards of Judicial Conduct opines

FACTS A full-time magistrate is married to the executive director of a non-profit organization. The spouse is holding a fund-raiser and has asked the judge to participate as a volunteer in the dunk tank. The advertising materials for the fund-raiser would not reference the judge’s status as a magistrate, but instead, would have “dunk the spouse of the director” language. The judge would not be required to solicit any funds for the organization.

CONCLUSION A full-time magistrate judge may participate as a volunteer in a dunk tank for a non-profit organization run by the judge’s spouse in these circumstances.

Because

We have previously found that a full-time judge could participate as a dancer in a fundraiser for a religious organization, where the judge would not personally solicit funds and the judge’s title would not be used in promotional materials. See, Op. No. 11-2013. The factual situation presented here is similar to that of Opinion No. 11-2013. Thus, as long as the magistrate complies with the Canon prohibiting personal solicitation of funds, and does not use the prestige of judicial office in the advertising of the fund-raiser, the judge may participate in the fund-raiser as a volunteer in the dunk tank.

(Mike Frisch)

April 21, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, April 18, 2017

Trial Tax?

Dan Trevas has a summary of a case decided today by the Ohio Supreme Court

If a criminal defendant gets a harsher sentence than one offered in a plea bargain, any allegation that the judge imposed the sentence as a “trial tax” must be supported with evidence  that clearly and convincingly demonstrates the judge acted vindictively, the Ohio Supreme Court ruled today.

A Supreme Court majority found Malik Rahab failed to prove a Hamilton County Common Pleas Court judge’s six-year sentence for burglary was based on vindictiveness after Rahab informed the judge he was rejecting a three-year sentence offered by prosecutors. The judge told Rahab he would most likely receive a longer sentence if he lost at trial.

In the Court’s lead opinion, Justice R. Patrick DeWine wrote that any claim that a judge is acting vindictively must be based on the entire record of the trial court proceeding. The Court ruled Rahab’s sentence was based on the facts of the case and his criminal past, not on vindictiveness on part of the trial judge.

Justice DeWine also noted Ohio will not adopt a presumption that a judge is acting vindictively when a defendant rejects a plea bargain and receives a harsher sentence when convicted.

In a partial dissenting opinion, Fourth District Court of Appeals Judge Maria M. Hoover, sitting on the Court by assignment, agreed with the majority’s position about how to evaluate a vindictiveness claim. But she concluded the judge threatened Rahab to forgo his right to a trial or suffer a longer sentence.

Rahab, Judge Discuss Impact of Plea Rejection
Rahab was charged with the 2014 burglary of the home of Christina Hewitt. Hewitt noticed her living room window was open and her purse was missing. A fingerprint from the window implicated Rahab. At a pretrial hearing, Hamilton County prosecutors informed the trial judge that Rahab was offered, and rejected, their recommendation of a three-year sentence.

The trial judge asked Rahab if he understood the potential sentence for the crime was a prison term ranging from two to eight years. The judge also informed Rahab that the court does “not look highly on cases where people don’t take responsibility and accept that they did something wrong if they’re found guilty.” The judge added that a conviction would most likely result in more time than the plea offer.

Hewitt testified at Rahab’s trial, and he was convicted. At a sentencing hearing, Rahab claimed he wanted to admit to the crime all along, but his attorney made him go to trial. When asked by the judge why he did not accept the plea, he replied he thought his crime did not justify a three-year prison term. The judge responded that Rahab’s logic was confusing because he refused to take the plea even as he admitted to the crime and after he was informed that he could be sentenced to eight years.

The judge then said to Rahab: “So I don’t know what you talked about with your attorney, but—too late. You went to trial. You gambled, you lost. You had no defense. And you even admit that you did it, and yet you put this woman through this trial again.”

Rahab apologized to the judge, and his brother addressed the court detailing Rahab’s difficult childhood. His brother asked the court not to sentence Rahab to eight years for one bad decision.

In delivering the six-year sentence, the judge told Rahab: “Well, guess what, you lost your gambling. You did this. You had no defense, and you wouldn’t take responsibility. You wanted to go to trial. All right, big winner you are.”

Rahab Claims Vindictiveness
Rahab appealed his sentence to the First District Court of Appeals, arguing the judge increased his sentence for exercising his constitutional right to a jury trial, and that the judge’s comments support the inference that the judge was acting vindictively when determining the time in prison. The First District affirmed the conviction and Rahab appealed to the Supreme Court, which agreed to hear the case.

Citing the Ohio Supreme Court’s 1989 State v. O’Dell decision, the opinion explained that a sentence vindictively imposed because a defendant sought a jury trial is invalid, but defendants are faced with the difficult task of proving vindictiveness. Rahab sought to reduce the burden by asking the Court to adopt a standard that would infer vindictiveness based on the trial court’s statements, the ruling explained. A judge would then have to make an “unequivocal statement” that the decision to go to trial was not considered as part of the sentence to demonstrate the lengthier sentence was not prompted by vindictiveness.

The opinion noted that the concept of a presumption of vindictiveness stems from the 1969 U.S. Supreme Court decision in North Carolina v. Pearce in which the defendant successfully appealed a conviction, then when retried and convicted again, the same trial judge gave the defendant a more severe sentence for the exact same conviction as the first one. Justice DeWine wrote that the U.S. Supreme Court has sharply limited the Pearce ruling and that subsequent development of the law has allowed judges to consider leniency for those accepting a plea bargain. He noted that a presumption of vindictiveness would apply only in those limited situations when there was a “reasonable likelihood” that the sentence was a product of actual vindictiveness.

Plea Bargains Must Be Bargains to Be Effective
The ruling noted there are legitimate reasons why a defendant who forgoes a plea bargain might get a harsher sentence, including the fact that courts can consider whether the accused accepted responsibility for the crime. The Court also explained that to be effective, a plea bargain must be a bargain, where in exchange for sparing the government the time and expense of a trial, the defendant has a reasonable expectation that the offered sentence in a plea deal would be less than what would be imposed following a trial conviction.

Because there is not a reasonable likelihood that a sentence harsher than what was offered during plea negotiations is a result of vindictiveness, no presumption applies. The defendant must prove actual vindictiveness, and Rahab did not, Justice DeWine concluded.

“The (trial) court’s intemperate statements are troubling. No court should give the appearance that it is chiding a defendant for exercising his constitutional right to a jury trial. But the statements can’t be read in isolation,” he wrote.

The Court held that the judge’s statement allowed Rahab to intelligently evaluate his options because the prosecution was suggesting a sentence near the minimum term while the judge was informing Rahab that he could face up to eight years. The opinion also noted that in the context of the sentencing hearing the judge expressed concern that Rahab did not admit or express remorse for his crime until after he was found guilty, and that Rahab subjected the victim to the trauma of a trial even though he knew he committed the crime.

Justice DeWine also wrote the trial judge had  a great deal of information to consider before imposing sentence, including a report from Rahab’s drug treatment program case manager who testified Rahab had not fared well in treatment and was not complying with program rules. The judge also learned at sentencing that Rahab, who was 19 years old when convicted, had been adjudicated delinquent 22 times as a juvenile, including once for robbery.

“In short, the trial court had a great deal of information to consider before it imposed the sentence—Rahab’s lack of genuine remorse, the impact of his conduct on the victim, his poor performance in treatment, his lengthy juvenile record, and his difficult upbringing,” the opinion stated. “No doubt it would have been better had the court’s words not hinted at a frustration with Rahab’s rejection of the plea bargain. But given the record before us, we are not convinced that the court sentenced Rahab based on vindictiveness, rather than on the evidence of his prior record, insincere remorse, and the impact of his crime on the victim.”

Justice Judith L. French joined Justice DeWine’s opinion. Chief Justice Maureen O’Connor and Justices Terrence O’Donnell and Sharon L. Kennedy concurred in judgment only.

Dissent Finds Judge Acted Vindictively
Judge Hoover, who joined the Court for the case after Justice Patrick F. Fischer recused himself, wrote that she found the judge clearly and convincingly sentenced Rahab vindictively. She noted the record included several “intemperate statements” from the trial judge and that they were made to express the judge’s dissatisfaction with Rahab’s choice to go to trial.

“Of particular concern are the trial court’s remarks made prior to trial. At that time, the trial court had not yet had the benefit of hearing evidence, nor did it know of Rahab’s prior criminal history or apparent lack of remorse; yet it had already determined that Rahab would receive a harsher sentence if he rejected the state’s offer and exercised his right to a jury trial,” she wrote.

Judge Hoover disagreed with the lead opinion that the trial judge was attempting to ensure Rahab understood his options, and interpreted the remarks as a threat to Rahab for not taking a plea.

“The majority’s conclusion that the trial court did not act vindictively in this case creates a nearly impenetrable barrier to proving actual vindictiveness. If the trial court’s actions in this case do not amount to vindictiveness, then what behavior would satisfy that burden?” she wrote.

Judge Hoover wrote the decision may have a chilling effect on criminal defendants’ willingness to exercise their constitutional rights to a jury trial.

Justice William M. O’Neill joined Judge Hoover’s opinion.

2015-1892. State v. Rahab, Slip Opinion No. 2017-Ohio-1401.

Video camera icon View oral argument video of this case.

(Mike Frisch)

April 18, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Monday, April 17, 2017

Ohio Opines On Ethics Of Email Solicitations

A staff report from the web page of the Ohio State Bar

The Ohio Board of Professional Conduct today issued advisory opinions on lawyer advertising and the representation of clients by a former magistrate. The opinions update and replace opinions previously issued by the Board under the former Code of Professional Responsibility and the former Code of Judicial Conduct.

In Advisory Opinion 2017-3, the Board provides guidance for lawyers who desire to use unsolicited emails as a form of advertising to attract new clients.

As a general rule, lawyers are not permitted to solicit clients through in-person contact, real-time electronic contact, or by live telephone. However, other forms of non-direct solicitation by lawyers are permissible. The Board advises that email is a form of an indirect communication that may be utilized by lawyers seeking new clients. When using email as a form of advertisement, the lawyer must abide by other conduct rules including avoiding misleading communications, not engaging in unwanted communications or harassment, and adding a disclaimer that the email is an “Advertisement Only.” The opinion also advises that a lawyer may use third-party services to send the emails, as long as the lawyer maintains responsibility for the actions of the service and the content of the emails. The opinion updates and withdraws former Adv.Op 2004-1.

In Advisory Opinion 2017-04, the Board considered the ability of a former magistrate, now practicing law, to represent a domestic relations client, post-decree, in a matter originally heard by the magistrate.

The Board advises that a former magistrate may not represent the client, unless all parties give informed consent, in writing, to the representation. If the former magistrate is not permitted to represent the client, no lawyer in the former magistrate’s firm may represent the client unless the former magistrate is timely and properly screened by the firm, receives no part of the fee, and written notice is provided to the parties and the court.

The Board also advises that under the Ohio Ethics Law, the former magistrate is prohibited for 12 months from representing a client in any matter the former magistrate personally participated before leaving public office. The opinion updates and withdraws former Adv. Op. 2005-5.

(Mike Frisch)

April 17, 2017 in Economics, Judicial Ethics and the Courts, Law & Business | Permalink | Comments (0)

Thursday, April 13, 2017

Judge To The Rescue

The South Carolina Advisory Committee on Standards of Judicial Conduct blesses a magistrate's 911 service

A full-time magistrate is also a certified paramedic. For many years, the judge has worked part-time as a paramedic in a 911 setting in a county different than the one in which the judge presides. However, the judge plans to retire from the 911 service and instead work part time for a non-emergency service that would provide services to several counties, including the one in which the judge presides as magistrate. The job would entail transporting patients from hospital to hospital, home to doctor’s facilities, etc. These would be non-emergency patients who cannot utilize traditional means of transportation. Further, from time to time, the judge may be requested to cover a public event as first aid personnel. The judge does not believe that there will be any situations in which he would come into contact with law enforcement at said events. Furthermore, the events would fall under the jurisdiction of the municipal court, rather than the magistrate court. The judge inquires as to whether he may accept such part-time employment.

Good to go

We have addressed employment by full-time magistrate in previous opinions (See, e.g., 13-2005, 9-2014). The Code of Judicial Conduct does not prohibit part-time employment by a full-time magistrate. Canon 4D(3) permits a judge to serve as employee of a business entity “if that service does not conflict with the judge’s judicial duties[.]” Rule 501, SCACR. The commentary to that Canon states that a judge’s participation may be prohibited if “participation requires significant time away from judicial duties.” In addition, all of judge’s extra-judicial conduct must avoid activities that cast reasonable doubt on the judge’s ability to act impartially and the judge must avoid the appearance of impropriety. Canon 4; Canon 2.

Here, it does not appear that the accepting part-time employment with a non-emergency medical transport service would conflict with the Canons. However, the judge should regularly re-examine the judge’s activities with regards to employment to determine if it is proper to continue such affiliation.

(Mike Frisch)

April 13, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)