Saturday, January 27, 2018
A litigant's involvement in the refinance of the judge's home did not form a basis for recusal, held the Tennessee Court of Appeals in affirming the trial court 's denial of the motion.
the Petitioner, by and through counsel, filed a Motion for Recusal. In his motion, the Petitioner noted that he was an employee at a “local financial institution,” where he worked as a “market valuation officer” and that the Judge had an ongoing business relationship with the bank. He alleged he “was directly involved in a decision-making process that ultimately resulted in an effect on the Court’s finances.” Because of certain banking laws, the Petitioner was not more specific in his motion, and he did not attach an affidavit, intending instead of presenting live testimony at the hearing.
The judge denied the motion.
The foregoing considered, we have identified the following three issues that require our analysis: (1) Whether the trial judge showed actual bias against Petitioner by failing to allow Petitioner to fully testify as to the facts supporting his motion for recusal; (2) Whether recusal is necessary based on Petitioner’s allegations that the trial judge was aware that Petitioner had “a direct, negative effect on the Court’s personal finances and the effect was substantial;” and (3) Whether the trial judge is a material witness to this matter.
As to the judge's cursory denial
the contention that the trial judge showed bias by refusing to allow Petitioner to testify in support of his motion for recusal is not sufficient, standing alone, to justify recusal. Moreover, Petitioner failed to comply with Rule 10B by not attaching an affidavit that verified the specific factual grounds supporting disqualification of the judge. Therefore, his failure to comply with Rule 10B provides a basis to deny the petition without a hearing on the motion.
I'll take refinance
We find no error with this decision because Petitioner failed to identify any factual basis to support his suspicion or unfounded belief that the trial judge knew or even suspected that Petitioner had made a decision that adversely affected the trial judge’s application for a loan. Moreover, the trial judge stated with clarity that he had no knowledge that Petitioner played any role in the loan application process. The trial judge also stated that he was unaware that there had been an opportunity for a lower interest rate, and he was not aware that Petitioner was involved in a decision that resulted in an increase in the interest rate. As the judge succinctly put it, “I applied for [the loan]. I was told, here is the deal, and I accepted the deal. . . . I was unaware of [Petitioner’s] involvement.”
Although Petitioner believes the judge knew of his involvement in the loan process, which suspicion is merely based on the fact that the judge knew Petitioner worked for the bank, this belief or suspicion lacks a factual foundation.
The judge is not a witness
The trial judge denied having any knowledge of the extrajudicial facts of circumstances Petitioner relies on, and this fact, without more, does not make the judge “a material witness concerning the matter,” the matter being the divorce proceedings. To the contrary, the trial judge’s response has no bearing on the substantive issues in the parties’ divorce, only the motion for recusal. Accordingly, the statements made by the judge from the bench and in the order denying the motion to recuse do not require recusal based on RJC §2.11 of Tenn. Sup. Ct. R. 10.
We also find it disingenuous for Petitioner to contend that the trial judge must recuse himself based on the judge’s response to the motion for recusal. If this were the case, every judge who may be justified in denying a motion to recuse on the basis he or she had no knowledge of extrajudicial facts or circumstances would, nevertheless, have to be recused based on statements the judge made in denying the motion. This contention is neither logical nor the intent of Rule 10B.
Friday, January 26, 2018
The Maine Supreme Judicial Court has reprimanded a former judge for a failure to recuse
The facts are not disputed. On August 6, 2015, Judge Nadeau appointed Kerri Gottwald to serve as guardian for the minor daughter of Devora Gavel. Sometime thereafter Gavel made negative social media postings concerning Judge Nadeau, to which a person using the name of Judge Nadeau’s wife responded. Judge Nadeau acknowledges in his brief that he was aware of Gavel’s postings.
Gavel sought recusal but he did not
Nine days later, Gavel filed a complaint against Judge Nadeau with the Committee on Judicial Responsibility and Disability, asserting, in part, that “it is my belief that Nadeau intentionally refused to recuse himself, with full knowledge and awareness of his clear bias, in an effort to retaliate against, humiliate and bully me for speaking out against him in the upcoming election.” (Emphasis in original.) The Committee reported the matter to us and recommended disciplinary action against Judge Nadeau for violating Rule 2.11(A). Both the Committee and Judge Nadeau filed briefs and the report is now in order for our consideration.
Because of the combined effect of Judge Nadeau’s wife’s direct contact with Gavel through social media postings that Judge Nadeau was aware of, and Judge Nadeau’s acknowledgement that he had a bias that would require his recusal, Rule 2.11(A) required Judge Nadeau to recuse. Judge Nadeau acknowledged that he harbored a bias against Gavel at the outset of the hearing. The source of that bias was evidently the extra-judicial negative social media exchange involving Gavel, because when Gottwald’s counsel pointed out that a credibility determination based on a prior court proceeding did not require recusal, Judge Nadeau referenced Gavel’s pro se motion to recuse, in which she cited only the social media exchange, and then again said that “if there were an evidentiary hearing, I think, it would be appropriate for me to disqualify myself.” Despite the litigant’s indication that she was “uncomfortable” with the process, Judge Nadeau actively participated in negotiating and ultimately approving the final result, which, as evidenced by the detailed directive to Gavel concerning her potential future income, see supra n.5, required considerable judicial involvement.
Judge Nadeau has left the bench amid unrelated ethics violations
We conclude that although a sanction resulting from this violation is warranted in order to deter others from similar misconduct, in Judge Nadeau’s case that need is tempered by the reality that he is no longer a judicial officer and is currently serving a lengthy suspension from the practice of law.
The Nebraska Commission on Judicial Qualifications has publicly reprimanded a judge for his actions in connection with an alleged violation of probation.
The defendant was on probation for reckless driving and was required to abstain from alcohol.
When a hearing was scheduled for alleged drinking, the case was called but the defendant was not in the courtroom. A person identified as the defendant's aunt told the judge that he was "passed out in the car" after drinking all night and had "downed a bottle of tequila" and that she (the aunt) was unable to get him to the courtroom.
Fifteen minutes later, the defendant was "brought into the courtroom in a wheelchair" and the case was recalled.
The judge took a guilty plea to the probation violation and had the defendant taken into custody where he tested a .4 blood alcohol content.
The judge knew or should have known that he was "probably too intoxicated" to enter a knowing and voluntary plea.
When the news reported the actions, the judge permitted the defendant to withdraw the plea and vacate the sentence.
That offer was declined. (Mike Frisch)
Tuesday, January 16, 2018
The South Carolina Advisory Committee on Standards of Judicial Conduct opines on the implications of a dating relationship
RE: Propriety of a magistrate holding bond hearings, signing warrants and presiding over preliminary hearings where the magistrate is dating the county sheriff.
A county magistrate just began dating the county sheriff. The magistrate is the presiding judge over Bond Court and the magistrate’s duties include: setting bonds twice a day, signing warrants, signing search warrants, and presiding over preliminary hearings. The judge inquires as to under which circumstances the judge must recuse himself/herself and/or when the judge would need to disclose the relationship.
The judge shall disqualify himself in a proceeding where he or she has a potential personal bias, such as handling any matters in which employees of the sheriff, whom the judge is dating, appear as witnesses.
A judge must disqualify himself or herself in a proceeding where his/her impartiality might reasonably be questioned. Rule 501, SCACR, Canon 3E(1).1 Furthermore, the judge must disqualify himself/herself if the judge has a personal bias concerning a party. Rule 501, SCACR, Canon 3E(1)(a). In 17-2002, this Committee addressed a situation in which a magistrate was dating a police officer who might be required to bring matters, such as arraignments, bond hearings, and warrant requests, before the magistrate when the municipal judge was unavailable. We determined that the relationship between the judge and his girlfriend could affect the outcome of the proceedings and that the magistrate should recuse himself in any matters brought before him by his girlfriend.
After discussing earlier opinions
In this case, the magistrate is dating the sheriff. While it may be unlikely that the sheriff personally appears before the magistrate, the sheriff’s employees will regularly appear before the magistrate for bond hearings, warrant requests, and other matters. Thus, this situation can be distinguished from Opinion 17-2002 in which the judge was dating a police officer, but not the chief of police or the sheriff (i.e., a person whose employees will regularly appear before the Court). The Committee’s previous opinions finding no conflict either involved a non-supervisory law enforcement officer, no overlap in jurisdiction, or some other distinguishing factor. This situation presented here is more comparable to Opinions 1-2005, 8-2007, and 1-2009 in which the judge would have to frequently recuse himself or herself because the judge’s spouse or his/her employees would regularly appear in the judge’s court. Even if the judge and the sheriff are not married, their relationship could lead to the judge’s impartiality being questioned and would require disqualification in any cases in which the sheriff and/or the sheriff’s employees appeared.
Thursday, December 28, 2017
From the web page of the Ohio Supreme Court
The Board of Professional Conduct issued an advisory opinion concerning the permissibility of judges appearing in community parades.
In Advisory Opinion 2017-8, the board concludes that a judge may appear in a community parade, regardless of whether the parade is held in an election year. A judge is not barred by the Code of Judicial Conduct from appearing in a parade in a non-election year, even if the activity may be considered “campaigning.”
Judges generally are encouraged by the Code of Judicial Conduct to participate in community activities. However, participation is only permitted if it will not undermine the independence, integrity, or impartiality of the judge. For that reason, the opinion recommends that a judge consider the nature and purpose of the organization sponsoring a parade before agreeing to participate. Participation in a parade organized by a group that practices discrimination is prohibited by the Code of Judicial Conduct. Participation in a parade sponsored by an entity that is promoting a particular position on a controversial issue may later call into question the judge’s impartiality in cases involving the same issue.
The opinion further advises that judges avoid the appearance of a political endorsement by not walking with or riding in a parade with non-judicial candidates. The same advice applies to appearing with officeholders with whom the judge may frequently interact, including prosecutors and sheriffs, because of the potential for eroding judicial independence and impartiality.
The opinion withdraws former Advisory Opinion 1993-09.
The Ohio Supreme Court declined to impose disbarment of a former judge for a serious act of domestic violence
We agree with the board that Mason committed the violations alleged in the complaint. However, we disagree with the board that disbarment is the appropriate sanction for Mason. Instead, we impose an indefinite suspension with no credit for time served on the interim felony suspension and with added conditions for reinstatement.
When the misconduct in this case occurred, Mason was a sitting judge on the Cuyahoga County Court of Common Pleas, General Division. During all relevant times, he was subject to the Code of Judicial Conduct as well as the Rules of Professional Conduct.
In March 2014, Mason and his wife, Aisha Fraser Mason (“Fraser”), separated, with Mason continuing to live in what was the marital home and Fraser residing in an apartment. During their separation, Mason and Fraser shared equally in the custody and parenting of their two minor children.
On August 2, 2014, Mason, Fraser, and the children attended a funeral service for Mason’s aunt. Mason and Fraser agreed that after the service, Mason would drop Fraser off at her apartment and Mason would spend the afternoon with the children.
During the ride to Fraser’s apartment, the couple engaged in a conversation about their relationship. As the discussion progressed, Mason became upset and began assaulting Fraser, all the while continuing to drive. Mason struck Fraser repeatedly in the head, hit Fraser’s head against the armrest, the dashboard, and the window of the passenger door, and bit Fraser on her face. Fraser attempted to escape the moving car, but Mason grabbed her hair. When the car stopped at a red light, Fraser was able to open the door, but fell to the ground as she tried to flee. With the two children still in the car, Mason placed the vehicle in park, got out, and began to strike Fraser as she lay on the ground.
Mason then returned to his vehicle and drove away, leaving Fraser behind. Mason and Fraser’s two children (ages six and four at the time) were seated in the back seat and witnessed the events. The older child, who has special needs and possesses limited verbal abilities, was quiet while the attack was occurring, but the younger child was screaming.
Upon arriving at the house, Mason called his sister, Dr. Lynn Mason, and asked her to come and pick up the two children because he intended to shoot himself. He was arrested by police later that day.
As a result of the attack, Fraser sustained severe physical harm to her head, face, and neck, including an orbital blowout fracture under her left eye. She was hospitalized overnight from August 2-3, 2014, following the attack, and again from August 8-9, 2014, for surgery. Fraser subsequently arranged for her two children to begin counseling. As of February 2017, they continued to receive counseling as a result of what they witnessed on August 2, 2014.
He was removed from office and pleaded guilty to felony charges.
Sanction less than disbarment
In this case, Mason was convicted of a felony based on a single violent assault. Brutal it surely was. But it was not shown to be premeditated or part of a pattern of behavior. In this regard, we consider this case to be distinguishable from those cited by the board. Instead, we look to Ohio State Bar Assn. v. McCafferty, 140 Ohio St.3d 229, 2014-Ohio-3075, 17 N.E.3d 521. In that case, a sitting judge was convicted of lying to the Federal Bureau of Investigation. This court imposed an indefinite suspension with no credit for time served. We distinguished previous cases, including those cited by the board in this case: “[T]he circumstances in this case can be distinguished from Gallagher, McAuliffe, and Hoskins, in which judges were permanently disbarred. In those cases, the judges had engaged in criminal conduct over a period of time, from a few days to months, and the misconduct was preplanned.” Id. at ¶ 23. We emphasized that McCafferty’s violations were unplanned and occurred on a single impromptu occasion, rather than as a pattern of premeditated criminal conduct. Id. at ¶ 24. Therefore, we concluded, “imposition of the system’s most severe sanction [was] not warranted * * *.” Id.
The court imposed an indefinite suspension with conditions for reinstatement.
The oral argument is linked here. (Mike Frisch)
Friday, December 22, 2017
The Tennessee Court of Appeals affirmed the denial of a motion to recuse.
The underlying dispute arises from an Agreement for Future Transfer of Controlling Interest of Hill Boren, PC, a law firm in Jackson, Tennessee. The plaintiffs are attorneys Ricky L. Boren and Jeffrey P. Boyd. The defendants are attorney T. Robert Hill and Hill Boren, PC, (“Petitioners”).
At the inception of this case, the Chancellor for Madison County, Tennessee, James F. Butler, voluntarily recused himself due to his familiarity with the parties. Senior Judge Robert E. Lee Davies of Williamson County, Tennessee was assigned to the case and has presided over this matter ever since. This appeal arises from Judge Davies’ decision to deny Petitioners’ motion to recuse.
Although a number of issues were raised, the court considered only recusal
Petitioners’ contention is that Chancellor Butler said something to Judge Davies while they had lunch on December 20, 2016, to prejudice him against Petitioners. The record, however, contains no facts to support a finding that Chancellor Butler and Judge Davies discussed this case, the parties, or the attorneys. Stated another way, the accusation that Chancellor Butler said something to Judge Davies that caused Judge Davies to become prejudiced against Petitioners or their lawyers is solely based on a supposition, not a fact, and Rule 10B requires parties to present specific facts that support their motion for recusal.
The record reveals that Chancellor Butler is a former partner at Spraggins, Barnett and Cobb, PLC, the firm representing Plaintiffs Boren and Boyd, and that Chancellor Butler’s brother is a partner in that firm. While this fact reveals why Chancellor Butler recused himself from this case, it fails to show that Chancellor Butler would attempt to prejudice Judge Davies against Petitioners. Not only is there no evidence in this record to support the accusations by Petitioners, Judge Davies states unequivocally in his order denying the motion for recusal that
[t]he Court did go to lunch with Chancellor Butler after the hearing on December 20, 2016; however, Chancellor Butler never discussed the proceedings in this case or in any way insinuated to the Court how the Court should rule. Chancellor Butler was nothing more than a gracious host to an out of town judge.
Judge Davies also correctly states in his order that “[t]he code of judicial conduct does not require judges to remain isolated from other members of the bar and from the
community.” See State v. Cannon, 254 S.W.3d 287, 308 (Tenn. 2008).
We also find it significant that Judge Davies also disclosed in open court, at the commencement of his involvement in this case, that he had a telephone conversation with Chancellor Butler that merely pertained to a scheduling issue, which is permitted.
The timing was also suspect
Having addressed the merits of the accusation, we also note that Petitioners waited ten months after learning of the luncheon to claim that an inappropriate ex parte communication took place. A motion for recusal should be filed when the facts forming the basis of that motion become known. Davis v. Tenn. Dept. of Employment Security, 23 S.W.3d 304, 313 (Tenn. Ct. App. 1999). The failure to seek recusal in a timely manner may result in the waiver of any complaint concerning the judge’s impartiality. Id. Stated another way, “[o]ne cannot know of improper judicial conduct, gamble on a favorable result by remaining silent as to that conduct, and then complain that he or she guessed wrong and does not like the outcome.” Id. (quoting State v. Lotter, 586 N.W.2d 591, 610 (Neb. 1998)).
Instead of promptly seeking recusal, Petitioners waited until an adverse ruling on civil contempt was handed down, almost ten months after the luncheon at issue, to brandish the ex parte communication sword. Accordingly, we hold that Petitioners’ failure to seek recusal in a timely manner constitutes a waiver of this issue. See id.
For the foregoing reasons, we find no merit to the contention that an inappropriate ex parte communication transpired between Chancellor Butler and Judge Davies.
As to alleged bias
Earlier in this opinion we ruled that there was no evidence of an improper ex parte communication. Therefore, the alleged bias against Petitioners must stem from events occurring in the course of the litigation of the case and “[i]f the bias is alleged to stem from events occur[r]ing in the course of the litigation of the case, the party seeking recusal has a greater burden to show bias that would require recusal, i.e., that the bias is so pervasive that it is sufficient to deny the litigant a fair trial.” Runyon, 2014 WL 1285729, at *6.
Thursday, December 21, 2017
The Florida Judicial Ethics Advisory Committee opines
Opinion Number: 2017-23
Date of Issue: December 15, 2017
1. May the administrative judge of a family law division send letters of appreciation to attorneys who have volunteered and served as a pro bono guardian ad litem?
ANSWER: Yes, as long as the letters are general in nature and are not signed by the judge who presided over the case for which the pro bono representation was provided.
2. May such a letter, if appropriate, be ethically sent only to the volunteer attorney without sending copies to counsel and without placing a copy in the court file?
ANSWER: Yes, but the Committee recommends that if a letter is sent, copies should be filed in the court file and provided to the parties or their counsel.
3. May, as an alternative to sending letters to the individual attorneys, the court participate in recognizing the attorneys who served as pro bono guardian ad litems as a group at a bar luncheon or similar function.
Tuesday, December 19, 2017
The Ohio Supreme Court has reprimanded a judge for invoking her judicial status when stopped by a state trooper.
Williams was appointed as a magistrate of the Highland County Court of Common Pleas, General Division, on July 14, 1997, and on April 1, 2015, she was appointed as a magistrate of that court’s probate and juvenile divisions.
The parties stipulate that on July 9, 2016, at approximately 3:30 a.m., an Ohio State Highway Patrol trooper stopped Williams on State Route 32 in Union Township, Clermont County, Ohio, after observing her vehicle drift to the left of the solid white fog line. The trooper asked Williams to step out of her vehicle and inquired about how much she had had to drink; she stated that she had two beers. When the trooper began to administer the horizontal gaze nystagmus test, Williams stated, “I’m a magistrate.” In response, the trooper asked Williams where she was a magistrate, and she replied, “Highland County.” Then, the trooper told her that he had to make sure that she was not driving while intoxicated.
Minutes later, when the trooper was instructing Williams on the walk-and- turn field sobriety test, she told him, “I’m a judge. My son’s a Secret Service officer. I would not be driving drunk.” After the trooper handcuffed her and informed her that she did not pass the field sobriety test, she said, “Please! I’m a judge. Don’t do this to me. I did not flunk this. I didn’t flunk it!” Seconds later, when Williams was in the back seat of the trooper’s cruiser, she said, “Sir, I’m going to lose my job! Please let me speak to my attorney. Officer! Officer, listen to me! I may lose my job. Would you please let me speak to my attorney in the car? Please?” She then repeated, “I’m a judge. My son’s a Secret Service officer.”
The judge pleaded guilty to reckless driving and was cooperative in the process. The parties stipulated to the misconduct. (Mike Frisch)
Monday, December 18, 2017
The New York Commission on Judicial Conduct accepted the resignation of a town court justice.
The commission and justice stipulated to the misconduct
Judge Clarkin was apprised by the Commission in November 2017 that it was investigating a Complaint that he made public comments on Facebook criticizing public officials and a New York State gun regulation law and conveying bias in favor of law enforcement and against a political organization, a social activist group, and members of a religious group.
He is not an attorney.
The Observer Dispatch covered the story. (Mike Frisch)
Thursday, December 14, 2017
The Maryland Court of Appeals dismissed as moot a judicial misconduct proceeding
WHEREAS, the Maryland Commission on Judicial Disabilities, pursuant to Maryland Rule 18-407 (j) & (k), referred to this Court the case of In the Matter of the Honorable Judge Alfred Nance, Judge of the Circuit Court for Maryland for Baltimore City, Eighth Judicial Circuit, Case Nos. CJD 2015-121, CJD 2015-163 and CJD 2016-012 for expedited consideration pursuant to Maryland Rule 18-408(a), and
WHEREAS, Judge Nance having filed a Motion to Dismiss in light of his resignation from the bench, effective December 1, 2017, with his declaration that he will not seek recall as a Senior Judge, and there being no opposition filed, it is this 14th day of December, 2017,
ORDERED, by the Court of Appeals of Maryland, that the case be, and it is hereby, dismissed without a determination as to mootness.
The Baltimore Sun reported on the allegations
As chief judge of the Baltimore Circuit Court, Nance built a reputation as a stern and demanding presence in the courtroom, one with little patience for those who waste time or arrive to court late, or are unprepared or casually dressed. His critics, however, have accused Nance of going too far and bullying both defendants and attorneys.
During a four-day hearing last month in Annapolis, [defense counsel] Brennan said the judge was simply “old-school.” He warned that disciplining Nance would deter other judges from speaking out as they see fit to maintain order.
The case centered on Nance’s courtroom encounters with Assistant Public Defender Deborah Levi, whom prosecutors said Nance dismissively referred to as “lady,” “mother hen” and “child.” They said Nance once told Levi to “shut up” and threatened to throw her in jail. She filed a complaint against Nance with the commission.
Levi declined to comment Thursday.
The commission found that Nance made comments in two 2015 cases that were “undignified, condescending, and unprofessional.” The members said his “facial expressions, tone of voice and body language” were “gratuitous, insensitive, inflammatory and relentless.”
Charges stemming from two other cases were dismissed for lack of proof, the commission wrote.
State laws require judges maintain fairness and decorum and conduct themselves in a manner that promotes confidence in the courts.
Prosecutors played hours of courtroom video from Nance’s cases during last month’s hearing. They described a pattern of behavior by the judge that they said belittled those in his courtroom.
The commission found that Nance told one defendant: “If you want to play with yourself, wait until you get back to your cell.” The commission found Nance also told the man, “If your tinkle come up dirty, you will be violated.”
During the hearings, retired Maryland Court of Appeals Judge Joseph Murphy Jr. told the commission that judges have broad authority to maintain order. He said Nance’s remarks fell within the bounds of that authority.
Attorneys Jane McGough, Margaret Mead and Michael Lawlor spoke in support of Nance during last month’s hearings, saying the judge was strict but respectful. Lawlor told of the time Nance once gave him collar stays for his wrinkled shirt.
Nance was issued a public reprimand in 2001 by the judicial disabilities commission for behaving in an "undignified" and "demeaning" manner toward women.
At that time, four female prosecutors formally accused the judge of having an "explosive temper" and making comments about their appearance. In another instance, Nance ordered a prospective juror who was single to stand up so that everyone in court could look at her. "There may be a single guy out there," he said.
In 2004, the commission dismissed charges of misconduct brought against him.
In a case that was not brought before the commission, Scott Reid, a public defender in Baltimore, said Nance humiliated his client last summer. The defendant was charged with attempted murder and Nance refused to let the man use the bathroom as hours passed by during jury selection.
“He said, ‘Mr. Reid, I really, really have to go. I’m really having a hard time holding it,’ ” Reid said of his client. “I repeated the desire to the judge and he’s like, ‘Look, there’s nothing I can do. He’s going to have to wait.’ ”
Meanwhile, Reid said, the jurors were allowed to step out to use the bathroom.
“The man literally just released, in his clothes, at the bench,” Reid said. “There was a large puddle. He was standing in it. … It was absolutely humiliating.”
Reid finds no fault with Nance’s rulings from the bench.
“Judge Nance has a reputation for being very fair to our clients … somebody who has a sense of justice,” Reid said. “The problem that I and some of my clients have is how he treats the human beings inside the courtroom.”
Sunday, December 10, 2017
A judicial election decision of the United States Court of Appeals for the Ninth Circuit
Montanans select their judges through nonpartisan popular elections. In an effort to keep those elections nonpartisan, Montana has restricted judicial-campaign speech. One of those restrictions is before us—a rule that prohibits candidates from seeking, accepting, or using political endorsements in their campaigns. Mark French, a judicial candidate who wishes to seek and use such endorsements, claims that Montana’s rule violates his First Amendment rights. Montana argues that the rule is narrowly tailored to ensuring the impartiality and independence of Montana’s judiciary. The district court upheld the statute, and we agree. In light of the Supreme Court’s decision in Williams-Yulee v. Florida Bar, 135 S. Ct. 1656 (2015), and our decision in Wolfson v. Concannon, 811 F.3d 1176 (9th Cir. 2016) (en banc), we affirm the judgment.
In 2014, Mark French ran as a candidate for justice of the peace in Sanders County. The Sanders County Republican Central Committee endorsed French’s candidacy, and two prominent Republican officeholders were willing to consider doing so if French had asked. Afraid of violating Rule 4.1(A)(7), French refrained from seeking or using these endorsements in his campaign. He ultimately lost the election, but intends to run again in 2018. Although French would like to seek and use political endorsements during the
next election cycle, he understands that he cannot do so as long as Rule 4.1(A)(7) remains in place.
We hold that Montana has compelling interests in an impartial and independent judiciary. Rule 4.1(A)(7) is narrowly tailored to those interests because it strikes an appropriate balance between a candidate’s speech and Montana’s interest in an independent and impartial judiciary. French’s arguments to the contrary are foreclosed by the Supreme Court’s decision in Williams-Yulee and our decision in Wolfson.
Circuit Judge Bybee authored the opinion. (Mike Frisch)
Tuesday, December 5, 2017
A Commission of Five Judges Appointed by the Ohio Supreme Court fined a judicial candidate for two election violations.
...a violation of Jud.Cond.R. 4.3(I) has been established by clear and convincing evidence. The record indicates that during the course of the judicial campaign and as a candidate for judicial office, Respondent knowingly disseminated campaign material that included a false statement of fact concerning the professional licenses he holds, namely, his admission to “all Federal Courts.” Additionally, Respondent included the false statement in the campaign materials with reckless disregard as to its truth or falsity.
During the course of a judicial campaign and as a candidate for judicial office, Respondent knowingly disseminated campaign material (i.e., a paper invitation) in which he knowingly used the title ofa public office (i.e., “Middletown Municipal Court Judge”) immediately preceding his name, when in fact Respondent did not hold that office at the time and has never held it.
The Journal-News reported that he won. (Mike Frisch)
Monday, November 27, 2017
A town court justice who is also an attorney has been admonished by the New York Commission on Judicial Conduct.
A victim of an alleged crime had been employed by his wife
From August 2014 through September 2014, Ms. M. had been employed by Virginia Curran, respondent's wife, at the Bedlam Comers General Store in Hebron, New York. Respondent was aware that Ms. M. had been so employed
Respondent's wife owns the Bedlam Comers General Store and also serves as respondent's court clerk.
He denied motions to recuse himself and engaged in ex parte contacts relating to the matter over the telephone and at a gas station
A few months after arraigning the defendant on charges of Assault and other offenses and issuing an order of protection, respondent received unsolicited ex parte information from two sources (an individual who approached him out of court and an anonymous voicemail message) claiming that the defendant had violated the order of protection by taking trips with the complaining witness. Respondent was obligated to disclose these out-of-court communications to the prosecutor and defense counsel and to provide the defendant with an opportunity to rebut the information in court. Instead, at a pre-trial conference a few days later, he not only failed to disclose the communications but compounded the impropriety by repeating the information he had received as fact ("I'm aware there's been multiple violations of the order of protection"), notwithstanding that the defendant had not been charged with violating the order. He reiterated the accusations when he accepted a plea agreement, sentenced the defendant and issued a six month order of protection, warning the defendant that he would "get the maximum" if he violated the order "again." These unsubstantiated accusations conveyed the appearance that respondent had received and was influenced by undisclosed, unauthorized information that the defendant, unaware of its source, was unable to refute. Even after defense counsel interjected that if respondent had such information he should not be handling the case, respondent did not disclose the communications.
Thursday, November 23, 2017
The Tennessee Court of Judicial Conduct has reprimanded a general sessions court judge in part for two orders that he had entered.
The orders granted two days of credit for time served to inmates who took a state course called the Neonatal Syndrome Education Program.
If a female inmate got a free nexplanon implant, she got another 30 days off the sentence. If a male inmate got a free vasectomy. that also drew a 30-day sentence reduction.
While the reprimand noted that he was seeking to promote what he viewed as the "worthy goal" of preventing the birth of addicted babies, it was nonetheless "unduly coercive."
WSXM.com reported on the orders.
Mary Cantrell was released from the White County Jail two days ago. She said, inside, she was offered a shorter sentence if she agreed to be surgically implanted with a birth control called Nexplanon.
"When we come in the inmates inside the jail was telling us about there was a new birth control thing for women," Cantrell told News 4 outside of the jail.
Judge Benningfield is behind the program. His order signed in May would knock 30 days off a jail sentence for men who agreed to a vasectomy and women who got the implant.
Inmates who took a course from the Tennessee Department of Health Neonatal Syndrome Education Program would have his or her sentence reduced by two days.
Cantrell declined to get the implant, but opted to take course. When she got to the classroom, she said Benningfield was there apologizing.
"[He said] he didn't mean it. He wasn't trying to force us or coerce us into getting the birth control," Cantrell said. "That he was sorry. That he didn't mean to say that he didn't mean to make us feel like that we shouldn't have children, that he just wanted us to wait until we could support them better and use better judgment.”
This week, under nationwide scrutiny, Benningfield filed a ruling rescinding the program.
Monday, November 20, 2017
The Tennessee Board of Judicial Conduct has reprimanded a General Sessions and Juvenile Court Judge for
unexplained tardiness for your court dockets. Your tardiness was for a substantial period of time and was, on a number of individual occasions, for significant periods of time. Your tardiness caused inconvenience to parties, witnesses, and attorneys."
The board notes that the "pattern of tardiness ceased" when the judge learned of the complaint. (Mike Frisch)
Saturday, November 18, 2017
From the Florida Judicial Ethics Advisory Board
Opinion Number: 2017-20
Date of Issue: November 13, 2017
1. Whether a judge shall be disqualified if an attorney from a law firm in which the judge’s brother-in-law is a partner appears as counsel in a case before the judge?
ANSWER: Yes, subject to remittitur.
2. May a judge enter an agreed-upon order submitted by the parties appointing the judge’s cousin as a mediator?
ANSWER: Yes, so long as selection of the cousin as a mediator is initiated by the parties.
3.Whether a judge shall be disqualified if the wife of the judge’s cousin appears before the judge.
ANSWER: No. Disqualification may be required, however, depending upon the relationship between the judge and the wife of the judge’s cousin.
4. Whether a judge shall be disqualified if the daughter of the judge’s cousin appears before the judge
ANSWER: No. Disqualification may be required, however, depending upon the relationship between the judge and daughter of the judge’s cousin.
5. Whether a judge must disclose the relationship when the wife or daughter of the judge’s cousin, or a member of their respective law firms, appears before the judge.
The opinion provides its reasoning for each answer.
As to the cousins
The wife and the daughter of the inquiring judge’s cousin in issue #2 (maternal grandfather’s sister’s son) are both attorneys in private practice who likely will or may be appearing in the circuit’s civil division. The inquiring judge would like to confirm that these relatives are not within the third degree of relationship as defined by the Code. The judge would also like to know whether it is appropriate to disclose the family relationship when the cousin’s wife or daughter, or any member of their respective firms, appears before the judge.
Canon 3E(1)(d)(ii), Fla. Code Jud. Conduct, provides that a judge shall be disqualified if a person within the third degree of relationship is acting as a lawyer in the proceeding. The definition of “third degree of relationship” contained in the Code does not include “cousin.” Fla. Code Jud. Conduct, Definitions; see Fla. JEAC Ops. 04-06, 97-13. As a result, neither the wife nor the daughter of the cousin is a relative of the third degree, and disqualification is not required solely because of the proscription set forth in Canon 3E(1)(d)(ii).
Disqualification may be required, however, depending upon whether a close familial relationship exists. Because disqualification is not mandated by 3E(1)(d)(ii), it is controlled by the nature of the relationship. The inquiring judge must examine the personal relationship with the wife and with the daughter of the cousin to determine whether or not disqualification is required on the basis that the judge’s impartiality may reasonably be questioned. Canon 3E.
Every family relationship is different. In the case of the wife or the daughter of the cousin, if a close familial tie exists, the judge’s impartiality might reasonably be questioned and disqualification would be required. On the other hand, if the judge does not have a close familial relationship with either the wife or the daughter of the cousin, disqualification would not be required. See Fla. JEAC Ops. 12-32, 97-13.
Even if the judge determines that there is no basis for disqualification, a disclosure of the relationship should be made.
Wednesday, November 15, 2017
The Florida Judicial Ethics Advisory Committee says "no' to these questions
1. May a judge who serves in an advisory role for a nonprofit cultural organization when the organization takes public positions on pending legislation?
2. May a judge serve in an advisory role of a nonprofit cultural organization sign a confidentiality agreement concerning matters learned while serving in that role?
Here the nonprofit organization has signaled its intent to become political by either supporting or opposing legislation including legislation that falls under the broad and expansive umbrella of civil rights. What qualifies as civil rights and civil liberties spans an unpredictable spectrum. It has tentacles in both civil and criminal law. The inquiring judge does not alert the committee as to judicial section(s) over which the judge presides. However, Canon 5 prohibits a judge from presiding over adversary matters that would “ordinarily come before the judge” or “in the court of which the judge is a member or in any court subject to the appellate jurisdiction of the court of which the judge is a member.” Fla. Code Jud. Conduct, Canon 5 C(3)(a)(i) & (ii). Continued membership in this organization could also call into question the “judge’s capacity to act impartially as a judge” and undermine the judge’s “independence, integrity [and] impartiality.” Fla. Code Jud. Conduct, Canon 5A(1) & (2).
Because of concerns over judicial independence, integrity and impartiality, we also counsel caution when a judge is asked to sign a confidentiality agreement. The inquiring judge is rightly concerned about the public perception of signing such an agreement and the possibility of becoming “entangled in controversies.” Although not all confidentiality agreements arise in circumstances where a judge’s independence, integrity and impartiality might be questioned, we stress that a judge’s fealty is to the law. It is not, and cannot be, to an organization to the detriment of that fealty. Therefore, if a judge discovers an organization practices, for example, unlawful discrimination, the judge cannot allow a confidentiality agreement to prevent the judge from disclosing that fact. In the commentary to Canon 2A, judges are admonished that they “must therefore accept restrictions on the judge’s conduct that might be viewed as burdensome by the ordinary citizen and do so freely and willingly.” Signing a confidentiality agreement while serving on the board of an organization that has expressed its intent to engage in advocacy could “create in reasonable minds, with knowledge of all the relevant circumstances â€¦ a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired.” Fla. Code Jud. Conduct, Commentary to Canon 2A.
Thursday, November 2, 2017
The Nevada Supreme Court administratively closed a judicial discipline matter.
From the Las Vegas Review-Journal
A longtime Goodsprings judge has resigned less than a month after being suspended without pay for a year.
Former Justice of the Peace Dawn Haviland resigned effective Sept. 18. She had served as Goodsprings’ only justice of the peace since she was appointed to the position in 1999.
Haviland’s attorney, Albert Marquis, said the former judge was disheartened by the Nevada Commission on Judicial Discipline’s investigation into and ruling on ethics charges that led to her suspension without pay in late August.
“What a terrible injustice was reaped upon Dawn Haviland,” Marquis said. “Three disgruntled employees conspired together to drag a judge off the bench, and with the help of the Nevada Commission on Judicial Discipline they succeeded.”
Marquis added that Haviland could not afford the “thousands of dollars” it would cost to attend classes at the Nevada Judicial College at her own expense, which was a requirement of her punishment.
County spokesman Erik Pappa said three temporary justices of the peace will rotate to cover Haviland’s calendar. The same arrangement has been in place since December, when Haviland was suspended with pay.
Commissioners are scheduled to discuss Tuesday how they will replace Haviland and Las Vegas Justice of the Peace Deborah Lippis, who resigned in August.
Commissioners can fill the vacancies by either appointment or special election.
Haviland’s term was set to expire in January 2019.
The Nevada Commission on Judicial Discipline suspended Haviland with pay in December based on findings “into numerous allegations of judicial misconduct,” according to a public notice released at the time.
In March, state disciplinary investigators charged Haviland with multiple ethics complaints, including sealing her then-son-in-law’s criminal records, ordering staff to run background checks on her friend’s boyfriend, and bullying employees while using commentary rife with vulgarity.
In a 14-page written response Haviland claimed the charges were false and concocted by disgruntled employees.
“I have at all times during my 20-year career attempted to administer justice fairly and within the confines of the law,” Haviland wrote.
The commission suspended Haviland without pay in late August.
In its ruling, the commission wrote Haviland was punished for her “repeated failure over several years to follow the law, her proclivity towards following her own moral compass in administering her version of justice irrespective of the law, and her lack of remorse and admission of wrongdoing for the same.”
(Mike Frisch )
A public reprimand and a 30-day suspension without pay has been imposed by the Florida Supreme Court on a county court judge
Judge Yacucci’s violations occurred during the course of an adversarial and contentious professional relationship between Judge Yacucci and attorney Stephen Smith. Id. at 1. Judge Yacucci has served as a county court judge in St. Lucie County since 2002. Id. at 3. Smith, who joined his current employer “The Ticket Clinic” in 2009, handled all of the Ticket Clinic’s cases in St. Lucie County. Id. at 4. Judge Yacucci held Smith in contempt in 2009 for accidentally showing up late to a hearing, and again in 2014 where he jailed Smith for five days for “hotly disputed” reasons. Id. During the 2014 contempt finding, Judge Yacucci announced in the courtroom that he had “lost confidence” in Smith, and subsequently filed a Florida Bar complaint which was later resolved with no imposition of discipline. Id. at 4-5.
Thereafter, in 2014, Smith ran against Judge Yacucci for a county court seat in a highly combative election. Id. at 5. Judge Yacucci sued Smith and an electioneering communication organization (“ECO”) for defamation, invasion of privacy, and intentional infliction of emotional distress. Id. Judge Yacucci obtained a temporary injunction against the ECO, but the Fourth District Court of Appeal in Concerned Citizens for Judicial Fairness, Inc. v. Yacucci, 162 So. 3d 68, 72-73 (Fla. 4th DCA 2014), overturned it for lacking supporting evidence and for triggering First Amendment concerns. Id. at 5-6.
Before election day, a public altercation between Smith and Judge Yacucci occurred at a polling place. Id. at 6. Judge Yacucci asserted that Smith made a sexual innuendo about Judge Yacucci’s wife, and that he responded with heated and profane words. Id. Smith asserted that the judge verbally attacked and physically assaulted him, and so he subsequently sued Judge Yacucci for assault, battery, and defamation. Id. During a televised interview in his courtroom immediately following the incident, Judge Yacucci remarked that Smith “should not be a lawyer,” “should not be in a courtroom,” and that he is “truly a disgrace as a judicial candidate and really as a human being.” Id.
Judge Yacucci won and stated he would recuse himself from Smith's cases for 2 1/2 years but failed to honor that limitation.
Judge Yacucci’s conduct warrants a sanction harsher than a mere public reprimand, as his longstanding combative relationship with Smith created legitimate fears of partiality and bias on the part of several litigants before his court. The acrimonious relationship between Judge Yacucci and Smith, marked by lawsuits, a public altercation and televised disparagement, the jailing of Smith for contempt, judicial campaign disputes, unsolicited attempts to influence a petition for writ of prohibition, and multiple refusals to disqualify himself, clearly displayed Judge Yacucci’s disregard for proper judicial conduct. Further, the responses filed by Judge Yacucci disputed the charges against him and attempted to taint the court’s view of Smith. The judge’s pattern of behavior towards Smith and his refusal to disqualify himself on several cases despite the legal sufficiency of Smith’s motions constitute clear and egregious violations of the Canons of the Code of Judicial Conduct.
Judge Pariente concurred and dissented
I dissent in part because I conclude that a longer suspension of at least ninety days is warranted in light of the totality of Judge Yacucci’s conduct, which occurred over a period of years and was unbefitting of a judicial officer both in the courtroom and on the campaign trail. I recognize that Judge Yacucci, first elected as a county court judge in 2002, has in many respects had an unblemished legal and judicial career, but we cannot and do not condone Judge Yacucci’s misconduct as found by the Judicial Qualifications Commission (“JQC”) and approved by this Court...
Judge Yacucci’s cumulative misconduct in this case diminished the public’s perception of the judiciary and, by engaging in this conduct, Judge Yacucci failed to uphold the integrity and independence of the judicial office. If the JQC’s unrefuted findings of misconduct did not cause Judge Yacucci to reflect upon the totality of his actions, I am skeptical that this Court requiring Judge Yacucci to take a judicial ethics course will have its desired effect. See majority op. at 1. For all of these reasons, I would conclude that the conduct in this case warrants, at minimum, a ninety-day suspension.