Saturday, May 28, 2016

Roaming, Hugging and Eating Candy Is No Way To Judge (If True)

The behavior of the trial judge requires the grant of a new trial, according to a decision issued Friday by the Louisiana Supreme Court.

The jury had returned a defendant's verdict in a medical malpractice action

Having reviewed the record and considering the briefs and oral argument of the parties, we are convinced that the trial judge’s actions resulted in a miscarriage of justice. Therefore, considering the unique and narrow facts presented, we conclude a new trial must be granted.

Chief Justice Johnson concurred and explained

In my view, it is undisputed that Judge Ellender engaged in bizarre and disturbing behavior during the jury trial of this matter such that the jury’s verdict cannot be allowed to stand. According to plaintiffs, Judge Ellender failed to preside over the trial from his position on the bench, but rather roamed around the entirety of the courtroom during much of the trial. Judge Ellender would stop and look out of the windows in the courtroom while plaintiffs’ counsel was examining witnesses. Judge Ellender continuously moved around the courtroom, sitting in various chairs, and, inexplicably, sat in the jury box with the jurors while eating candy - all during witnesses’ testimony. The record also contains uncontroverted testimony from the plaintiff that Judge Ellender greeted the defense medical expert, defendant’s medical partner, with a handshake and embrace in front of the jury. Additionally, although neither counsel asked plaintiffs’ medical expert, Dr. Leo Murphy, any questions regarding his fees and expenses during the trial, after Dr. Murphy was released Judge Ellender took it upon himself to question plaintiffs’ counsel about the costs paid to Dr. Murphy in the presence of the jury...Judge Ellender’s insidious actions of leaving the bench, wandering around the courtroom, looking out the windows, eating candy and otherwise failing to pay attention to the proceedings communicated to the jury in a non-verbal way his opinion that the trial was not serious and could be treated as a joke. 

A footnote to the concurrence notes prior judicial discipline imposed on the judge

In re Ellender, 09-0736 (La. 7/1/09), 16 So. 3d 351 (Judge Ellender suspended for thirty days without pay due to his failure to treat a pro se petitioner’s application for protection from domestic abuse seriously, and acting in a condescending and demeaning manner towards her); In re Ellender, 2004-2123 (La. 12/13/04), 889 So. 2d 225 (Judge Ellender suspended for one year, without pay, with six months of that suspension conditionally deferred as a result of his conduct in appearing in public, at Halloween party, in costume with afro wig, black face makeup, and prison jumpsuit).

Justice Weimer dissented and noted that the allegations came from a single post-verdict affidavit rather than a contemporaneous objection

...as a reviewing court, we cannot and should not simply assume that these allegations are accurate, let alone make the additional leap that such allegations justify granting a new trial. It has been aptly stated that “[a]n extraordinary claim requires extraordinary proof.” Similarly, the law requires that, before we overturn the work of a jury, comprised of citizens who take an oath to judge fairly and impartially, we must examine whether the judge has improperly held sway over the jury...

This examination required by law must be based on evidence, not conjecture, and begins with the trial record. In the trial record, there is nothing to substantiate the plaintiffs’ allegations of inappropriate behavior. Most significantly, there is not even an objection in the trial record for any of the allegations leveled against the judge. This court has previously found that the lack of a contemporaneous objection about a judge’s conduct reveals a lack of prejudice.

Justices Clark and Crichton also dissented.

Justice Crichton wrote

I respectfully dissent from the majority’s finding that plaintiffs are entitled to a new trial in this case. Although the majority finds that there is sufficient evidence in the record establishing that the trial judge’s actions during the jury trial of this matter resulted in a miscarriage of justice, in my view, the trial record is devoid of any specific evidence documenting the trial judge’s alleged behavior. Counsel for both parties conceded that they personally did not witness much of the alleged behavior, as it was “behind” them in a large courtroom. As a result, the only “evidence” presented at the post-verdict motion hearing is set forth by the jury foreperson in her arguably inadmissible affidavit and the self-serving testimony of one of the plaintiffs. Plaintiffs’ counsel has also offered little explanation as to why he did not issue subpoenas or compel testimony of others who were in the courtroom during trial to testify regarding the judge’s behavior (such as the bailiff, deputy clerk of court, court reporter, or even Judge Ellender), when the trial judge’s alleged actions are paramount to the plaintiffs’ claims of prejudice resulting from his behavior. Consequently, in my view, there is insufficient evidence to warrant a second bite at the apple...

However, and though the cumulative effect of Judge Ellender’s conduct is troublesome, I fear that this judge’s institutional history of untoward behavior has perhaps influenced the majority’s decision today, which should instead be focused on the evidence presented in this record in this case. In my view, the unsupported allegations of improper conduct in this instance do not warrant the reversal of a jury verdict and remand for a new trial.

Houma Today reported on the 2009  judicial discipline matter involving the judge. (Mike Frisch)

May 28, 2016 in Judicial Ethics and the Courts | Permalink | Comments (1)

Wednesday, May 25, 2016

Judge May Respond

A judge seeking reelection may comment on a criminal case involving misconduct by a former court employee, according to a recent opinion of the Florida Judicial Ethics Advisory Committee.

May an incumbent judicial candidate publicly comment about the events surrounding the termination of a court employee, including the employee’s arrest and conviction?

ANSWER: Yes.

FACTS

The inquiring judge is involved in a contested campaign for reelection. Some time ago, a court employee who worked in the same courthouse as the inquiring judge was terminated, and later arrested and convicted. After the employee’s termination, the employee made certain allegations about the inquiring judge. At sentencing, the employee made remarks apologizing to the inquiring judge. The employee was sentenced to a period of incarceration and probation. The employee is currently on probation.

The inquiring judge advises that there have been media accounts during the current campaign about the employee’s previous allegations about the inquiring judge. The inquiring judge would like to publicly comment on the former employee’s allegations, and on the former employee’s comments at sentencing, but is concerned whether doing so would contravene the proscription of Florida Code of Judicial Conduct, Canon 3B(9), which states:

A judge shall not, while a proceeding is pending or impending in any court, make any public comment that might reasonably be expected to affect its outcome or impair its fairness or make any nonpublic comment that might substantially interfere with a fair trial or hearing… This Section does not apply to proceedings in which the judge is a litigant in a personal capacity.

 DISCUSSION

Because the former employee remains on probation, it is theoretically possible that the employee may be involved in future court proceedings. However, no such proceeding is pending or impending. More to the point, the inquiring judge was not the presiding judge in the employee’s criminal case. Cf. Fla. JEAC Ops. 98-28 (inquiring judge who presided over case that is currently on appeal cannot appear in documentary concerning the case); 11-16 (inquiring judge may not speak to conference of judges and others interested in the administration of justice concerning a trial presided over by the judge and which is being appealed). The inquiring judge would have even less connection to any future court proceedings stemming from the employee’s probationary status.

Consequently, the Committee is of the opinion that the inquiring judge can comment on the allegations made by the employee about the judge, including discussing comments by the employee at sentencing, so long as the inquiring judge’s comments are truthful and do not otherwise violate the Canons. See Republican Party of Minn. v. White, 122 S. Ct. 2528 (2002) (stating that speech about the qualifications of candidates for public office, including judges, is at the core of our First Amendment freedoms).

(Mike Frisch)

May 25, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, May 24, 2016

What's A Judge Got To Do With It?

A village court justice who is also an attorney has been admonished by the New York Commission on Judicial Conduct for misconduct in office that permitted the prosecutor in traffic cases to negotiate pleas and impose sentences.

Only judges have authority and responsibility to accept or reject a negotiated plea; and dismissing and reducing charges, convicting defendants and imposing sentences are quintessential judicial functions requiring the exercise of judicial discretion. Placing such responsibilities in the hands of the prosecutor, who is not a neutral arbiter but an advocate, is especially problematic. Though respondent testified that she occasionally spoke to the Deputy Town Attorney about the "parameters" for such  negotiated dispositions, a discussion of parameters is no substitute for reviewing dispositions in individual cases. Nor is it any excuse that, as respondent testified, Mr. Tudisco was an officer of the court whom she trusted to act appropriately. By abandoning her responsibility to review dispositions negotiated by the Deputy Town Attorney, respondent delegated these important judicial functions to the prosecutor and to court clerks, who accepted and processed the negotiated pleas. Such conduct was inconsistent with her obligation "to perform the duties of judicial office impartially and diligently" and "be faithful to the law," and to "act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary"

Nor was it a defense that the improper practice predated the justice's service on the bench or that she consulted with her co-justice.

Worse

After these practices had continued for a year in respondent's court, the Commission requested court files and calendars from several nights on which negotiated pleas had been processed. Before the files were copied and sent to the Commission, respondent placed her initials on each of 189 files, next to the Deputy Town Attorney's notation of the plea agreement, which conveyed the appearance that she had contemporaneously reviewed and approved the dispositions...

It is wrong for a judge to alter records in any way, for any purpose, after the Commission has  requested them, and particularly improper to do so if the alterations might be misleading. Only after the Commission had interviewed various witnesses did the Commission learn that respondent had initialed the files only after the Commission had requested them. Had it been proved that respondent intended to mislead the Commission by conveying the false impression that she had contemporaneously reviewed the dispositions, there is little doubt that the sanction of removal would be appropriate.

Mr. Emery dissented

The majority determines to admonish respondent based on an incomplete record that makes it impossible for me to determine with any degree of confidence whether that sanction is appropriate. Regrettably, the record is incomplete because we have not followed through with our commitment to have the record appropriately developed. When we rejected an earlier Agreed Statement and sent the matter to a referee, we directed that an adversarial proceeding take place to fully develop the factual record. Instead, the staff stipulated to facts central to the case that were very much in dispute and did not seek to develop the record as we directed. The majority's response now is to abandon the effort rather than require a full exploration of the evidence which, in my view, would be dispositive of the fundamental open question in this case.

There is no dispute that in placing her initials on 189 court files, next to the Deputy Town Attorney's notations of plea agreements and recommended dismissals, respondent conveyed the appearance that she had previously reviewed and approved the dispositions when, in fact, she had not - the very conduct the Commission was investigating. The key issue is why she initialed these documents in the misleading way she did: did she initial the files in order to mislead the Commission - engaging in a cover-up as the Formal Written Complaint alleges - or did she merely initial them without any intent to mislead the Commission in order to identify the files as her cases?  Rather than probing this central issue and developing the record more fully, as we directed in rejecting the previously proffered Agreed Statement, we are now presented with stipulated facts stating, inter alia, that it is "not in dispute" that the  judge did not intend to mislead the Commission (Ref Ex 1, pp 1, 8, 11 ). But the evidence, on its face, conveys a plainly contrary appearance. And plainly, this was the central factual dispute in the case.

(Mike Frisch) 

May 24, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Friday, May 20, 2016

Recusal Not Required In Smokers Cases

The Florida Judicial Ethics Advisory Committee has opined on the ethics of a judge handling tobacco-liability litigation where a relative may have a claim.

The facts

The inquiring judge is a circuit judge assigned to the circuit’s civil division that includes presiding over Engle Progeny cases. Engle Progeny lawsuits reference the Florida Supreme Court’s decision in Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006), where the ruling allowed Florida smokers who were members of the class to file lawsuits of his or her own on an individual basis and use the liability findings from the class action trial. "Engle Progeny" lawsuits stem from the Engle case filed in 1994, when six Florida smokers, including Dr. Howard A. Engle, filed a class action suit alleging that members of the class estimated at over 100,000 Florida smokers had been injured by cigarette usage by the tobacco industry.

The inquiring judge learned that in 2008 a late uncle, as the personal representative of the inquiring judge’s grandfather’s estate, filed an Engle Progeny case regarding the grandfather’s death. (Hereinafter, “2008 case.”) The 2008 case was filed within the inquiring judge’s circuit, assigned to another circuit judge and ultimately dismissed as being time-barred in 2016. The inquiring judge was not a beneficiary and there was no recovery by the estate. The inquiring judge was not aware of the case while it was pending, but learned of the family’s 2008 case when it was dismissed in 2016.

In 2014, the inquiring judge presided over one Engle Progeny trial which is final and disposed, and another in 2015 which is currently on appeal. The inquiring judge will preside over a third Engle Progeny case that will be proceeding to trial in 2016. The inquiring judge will be assigned future Engle Progeny cases as part of the assigned case load.

Conclusion

In reviewing this Committee’s prior precedents, this inquiry is the first involving an Engle Progeny case. However, we have addressed and found that neither prospective involvement as a plaintiff in a mortgage foreclosure, nor current involvement as a tenant/defendant in a mortgage foreclosure, mandated recusal by a judge in all cases concerning residential mortgage foreclosures. See Fla. JEAC  Op. 15-14.

Nor was the inquiring judge required to recuse in all cases involving the same lawyers, lenders, or assignees involved in the judge’s residential foreclosure unless the judge determines that the judge had a personal bias or prejudice against the lawyers, lenders, or assignees. In Florida Judicial Advisory Committee Opinion 97-12, the Committee advised that the decision to recuse, from cases involving a lawyer who represented defendants in a case where the judge was a plaintiff, was a “personal and case specific” decision.

Applying the applicable canons and case law to this inquiry, disclosure of the 2008 case would be advised on future Engle Progeny cases assigned to the inquiring judge.

If the same attorney that represented the inquiring judge’s family member’s case appeared before the inquiring judge on an unrelated Engle Progeny case, there could be the appearance of impropriety and the perception of being in a favorable position to influence the inquiring judge contrary to Florida Code of Judicial Conduct, Canon 2B which states a judge shall not “convey or permit others to convey the impression that they are in a special position to influence the judge.” On the other hand, if  the same attorney(s) that represented the tobacco company defendant in the 2008 case also appeared before the inquiring judge on an unrelated Engle Progeny case, there could be the appearance that the attorney(s) could be in an unfavorable position before the inquiring judge.

(Mike Frisch)

May 20, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Judge Admonished For Failure To Recuse In Case Involving Her Personal (And Free) Attorney

The Iowa Supreme Court has admonished (not reprimanded) a judge for an ethics violation

The Iowa Commission on Judicial Qualifications filed an application for discipline of a judicial officer recommending this court publicly reprimand a district court judge. See Iowa Code § 602.2106 (2015). Because we conclude the judge violated the Iowa Code of Judicial Conduct, we grant the application for judicial discipline. Rather than publicly reprimand the judge, however, we publicly admonish the judge.

The issues related to the judge presiding over cases in which the attorney who represented her in divorce and post-divorce matters was counsel

There can be no serious doubt a reasonable person who knows an attorney appearing before a judge currently represents the judge in a personal matter would have a reasonable basis for questioning the judge’s impartiality...

Notably, Judge Howes recognized she could not preside over any matter in which an attorney who was currently representing her represented a party. Judge Howes and Ms. Pauly testified that no attorney–client relationship existed between them on July 25 when Judge Howes signed the order granting the temporary injunction Ms. Pauly sought on behalf of Mr. Khawaja.

Despite this testimony, the Commission concluded Judge Howes was obligated to disqualify herself from any case in which Ms. Pauly was representing a party when she signed the order even if Ms. Pauly was not currently representing her. More precisely, the Commission determined that under either approach described above, Judge Howes was obligated to disqualify herself from deciding whether to grant the temporary injunction because Judge Howes and Ms. Pauly admitted they had an attorney–client relationship in May 2013...

Judge Howes does not dispute that Ms. Pauly represented her in two highly confidential personal matters within the two years preceding the date on which she signed the ex parte order granting the temporary injunction that Ms. Pauly sought on behalf of her client. Nor does Judge Howes dispute that she and Ms. Pauly shared an attorney–client relationship when Ms. Pauly sent the letter to Mr. Kepros on her behalf just two months before she signed that order. Furthermore, Judge Howes does not deny that she did not pay for the legal services Ms. Pauly provided.

Given these facts, we agree with the Commission that it is unnecessary to decide the precise standard that governs determinations as to whether disqualification is required under rule 51:2.11(A) based on a former attorney–client relationship between a judge and an attorney appearing before the judge in this case. Instead, we conclude a reasonable person with knowledge of all the facts on July 25 might have had a reasonable basis for questioning Judge Howes’s impartiality when she signed the ex parte order even if Judge Howes did not have an ongoing attorney–client relationship with Ms. Pauly on that date.

The court rejected a "rule of necessity" defense.

As to gratis legal services

Though Judge Howes offered to pay Mr. Jasper and Ms. Pauly for their legal services, the record indicates she accepted free legal services from both attorneys when they refused her offers for payment. The Commission concluded Judge Howes violated rule 51:3.13(A) because it found her acceptance of free legal services from Mr. Jasper and Ms. Pauly would appear to a reasonable person to undermine her independence, integrity, or impartiality.

Sanction

The Commission recommended Judge Howes be publicly reprimanded, rather than temporarily suspended, in light of a consideration it found to mitigate the severity of her misconduct. In particular, the Commission concluded the legal culture in which Judge Howes works likely contributed to her apparent confusion regarding the applicable standards for identifying conflicts that warrant judicial recusal and the appropriateness of judges accepting free legal services from attorneys likely to appear before them. We give respectful consideration to the Commission’s recommendation regarding an appropriate sanction, but we are not bound by it...

We agree with the Commission that additional circumstances are relevant to selecting the appropriate sanction in this case. Based on the testimony of the other judges who appeared before the Commission on her behalf, it is evident Judge Howes was not alone in her mistaken beliefs concerning her ethical obligations. But we are mindful that judges are responsible for assuring that they understand the parameters of their ethical duties. Because avoiding even the appearance of impropriety is of paramount importance to maintaining the public trust and respect for the judiciary, judges should conduct themselves especially cautiously whenever those parameters appear to be unclear or debatable. Accordingly, we conclude the apparent lack of clarity concerning the rules violated counsels only slightly in favor of a lighter sanction.

In addition, Judge Howes has reassured us that she did not intentionally or knowingly disregard her ethical obligations. Rather, it is clear that, were it not for her mistaken beliefs concerning the rules governing her conduct, she would have conducted herself differently to avoid violating them. Judge Howes acted in good faith and took care to assure she honored what she understood those requirements to be. Moreover, we are firmly convinced Judge Howes did not intend to give Ms. Pauly or her client any advantage by granting the application for a temporary injunction. Rather, the order she signed was merely a temporary order maintaining the status quo pending a further hearing, and she believed that an emergency warranting immediate action existed. We conclude these facts also counsel in favor of a lighter sanction...

...we conclude this court has the power to admonish, rather than reprimand, suspend, or remove, a judge when the Commission files an application for judicial discipline for the following reasons. First, section 602.2106(4) states that this court may “render the decree that it deems appropriate” when it finds an application for judicial discipline “should be granted in whole or in part.” Iowa Code § 602.2106(4). Second, the Iowa Constitution grants this court “supervisory and administrative control over all inferior judicial tribunals throughout the state.” Iowa Const. art. V, § 4. Thus, we conclude that when the Commission makes an application for discipline of a judicial officer to this court, upon deciding to grant the application this court has the power to admonish rather than reprimand, suspend, or remove a judicial officer.

(Mike Frisch)

May 20, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, April 27, 2016

North Dakota Liberal On Judicial Campaign Issues

The ethics of judicial campaigning in the modern media environment is addressed in a new opinion of the North Dakota Judicial ethics Advisory Committee which concludes

The North Dakota Judicial Ethics Committee has concluded that a judicial candidate may use electronic social media to further his or her campaign so long as that use does not violate the North Dakota Rules of Judicial Conduct. The candidates are cautioned to be aware of the limitations discussed in this opinion.

The Committee is also of the opinion that a sitting judge involved in a judicial election may wear his or her robe in connection with the campaign.

 After discussing the views of committees in other jurisdictions

The North Dakota Judicial Ethics Advisory Committee takes the more liberal position that the candidate may establish electronic social media pages along with his/her campaign committee and participate in those aspects of maintaining the social media pages that do not involve financial solicitation on behalf of the candidate. Depending on the specific context a candidate asking for the reader of a social media page to “like” or “share” the page is not necessarily a request for an endorsement or publicly stated support. For example, a “like” of a candidate’s page on Facebook allows one to subscribe to later posts and events from the page and generally to follow the progress of the election campaign. Public posts on social media pages are similar to and pose the same issues as a newspaper or television ad soliciting private support for the candidate.

 A caveat

The candidate should be cautious when inviting people to “like” or “share” a campaign page or post and take care to avoid any suggestion that in context might be perceived as a direct, personal solicitation of contributions or public endorsement. The candidate may include a link from a campaign social media page to a web page maintained by the campaign committee, but any solicitation for contributions should be incidental to the structure of the page.

On appearing in robes

One further concern to be addressed in this opinion is whether a sitting judge running for another term may pose in a judicial robe for the purpose of promoting his or her campaign. The issue is that such action would be using State resources in an inappropriate manner. In North Dakota, that question is rather easily answered. The North Dakota Supreme Court addressed the matter of a justice running for reelection to the North Dakota Supreme Court was videotaped wearing his judicial robes and sitting in a courtroom. Saefke v. VandeWalle, 279 N.W.2d 414 (ND 1979) The Court concluded that the voters of the state were “not misled or unduly influenced” by the justice in his robe pictured in a courtroom. Id. At 417. The Court further concluded that to argue that the use of the courtroom and the electricity consumed for the time it took to videotape was an illegal use of state resources was frivolous.

(Mike Frisch)

 

April 27, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Friday, April 8, 2016

Public Discipline For Part-Time Magistrate

A pert-time judicial magistrate has been reprimanded by the Iowa Supreme Court.

Magistrate Sevcik, acting in his capacity as a private attorney, represented a client in district court for a hearing on a motion for temporary placement of a child. Prior to the hearing, he retrieved four criminal and six domestic abuse court files from the office of the clerk of court. He had notified the clerk of court in advance that he wanted the files and intended to ask the judge to take judicial notice of the contents of the file during the course of the hearing. Magistrate Sevcik was uncertain whether he was on duty as a magistrate when he requested the files, but was not on duty when he retrieved them from the clerk’s office. He knew two of the criminal files included deferred judgments and had been expunged. These files were marked as expunged. He understood the expunged files contained confidential documents and were only available to specific persons and agencies, including magistrates...[He] believed the district judge presiding over the hearing could take judicial notice of all the files, and he requested such judicial notice during the hearing, placing them on the courtroom bench. In addition, Magistrate Sevcik used a document from one of the expunged files to impeach a witness during the hearing.

The court affirmed some findings of misconduct

A judge who acquires nonpublic information in a judicial capacity and uses the information for purposes unrelated to the judge’s judicial duties can undermine the judge’s independence, integrity, and impartiality. Here, the conduct by Magistrate Sevcik was in the nature of abuse of power and projected a willingness to misuse judicial authority to benefit his private practice of law.

On sanction

It is unnecessary for us to decide if we should adopt a public admonition as a form of judicial discipline. Considering the nature of the conduct, this case does not present a need for us to provide instruction to magistrates on how to use their authority to access expunged records. The misuse of authority in this case was not the result of a misunderstanding, but a clear violation of the rule against using judicial authority for purposes unrelated to the work of a magistrate. We agree with the Commission [on Judicial Qualifications] that a public reprimand is the appropriate sanction. It meets the goals of imposing sanctions and is supported by the relevant circumstances in the case.

(Mike Frisch)

April 8, 2016 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, April 6, 2016

Village Court Justice Should Be Removed: Told Co-Judge To "Have A Stroke And Die"

A justice should be removed from office , according to the New York Commission on Judicial Conduct.

The village court justice also is an attorney.

One count involved his abuse of a student intern and others

On repeated occasions over several years, respondent abused his judicial position in order to bully, harass, threaten and intimidate his court staff, his co-judge and other village officials and employees with whom he dealt in an official capacity. Without lawful basis, he repeatedly threatened such individuals with contempt or arrest over routine personnel or administrative issues in his court. On a frequent basis, he also subjected them to demeaning treatment, insults and angry diatribes in response to perceived disrespect or shortcomings in the performance of their duties and, in one instance, exhibited a shocking display of physical aggression in the court clerk's office. Such "a pattern of injudicious behavior and inappropriate actions ... cannot be viewed as acceptable conduct by one holding judicial office" (Matter of VonderHeide, 72 NY2d
65 8, 660 [ 1988]) and warrants his removal from judicial office.

Epitomizing respondent's misconduct is his response to the hiring of a college student to work in the court clerk's office in the summer of 2012. In an incident that escalated into a melee, respondent, who was displeased because the student, Maxary Joseph, had been hired by the mayor without respondent's input or approval, acted in a manner that failed to show "even a modicum of sensitivity or self-control so vital to the demands of his position" (Matter of Kuehnel, 49 NY2d 465, 469 [1980]) as he attempted to have the student removed from the premises, threatened him with arrest and contempt, and made similar threats against others who attempted to thwart respondent's efforts to effectuate the arrest.

 Initially, after ordering Mr. Joseph to leave the office and threatening him with arrest when he returned at the mayor's direction, respondent called the police and told them he had held an individual in contempt (a statement respondent later admitted was untrue) and that he wanted him arrested for trespassing; he also told the police "the mayor may be next." Then, with a commitment order in hand, he went to the police office in the municipal building, announced that he was sentencing an individual to jail for 15 days, and said he would hold the police in contempt unless they assisted him. He called the sheriffs office and said he wanted the matter investigated, summoned an offduty court officer to the court for assistance, and directed a court clerk to set up the recording equipment in the courtroom. When his co-judge attempted to intervene, respondent threatened him with contempt and told him to "have a stroke and die."   Respondent also ignored the pleas of the court clerks, who were shocked and frightened by respondent's evident rage as he screamed at Mr. Joseph and, while standing next to the student's desk, ordered him into the courtroom and began to advise him of his rights. In an alarming display of injudicious temperament, respondent grabbed Mr. Joseph's arm and attempted to pull him out of his chair, yanking him with such force that the chair began to slide toward respondent. When police, who had rushed to the clerk's office after hearing screaming and yelling, tried to calm the situation and suggested that respondent discuss his concerns about hiring with the mayor, he responded by referring to the mayor in profane, vulgar terms and added that he was contemplating holding her in contempt.

The commission noted that the behavior at issue was not an isolated instance.

The proposed removal now goes to the state Court of Appeals. (Mike Frisch) 

April 6, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, April 5, 2016

I'll Be Seeing You

The Tennessee Court of Judicial Conduct entered an agreed order of dismissal of allegations against a judicial commissioner.

The agreed statement acknowledges that the commissioner had certified that a person had appeared before him for bond when no court record reflected the appearance and the defendant had denied it.

The commissioner agreed to take steps assure accuracy in the future. The commissioner had implemented the procedures after the incident at issue. (Mike Frisch)

April 5, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, March 29, 2016

Sign Language

An opinion from the South Carolina Advisory Committee on Standards of Judicial Conduct deals with the propriety of a judge's involvement in a spouse's political campaign

A full-time Municipal Court Judge wishes to be involved in a spouse’s political campaign for a non-partisan position at a local level. No monetary campaign contributions will be sought. The judge wants to attend meet-and-greet events and post campaign signs. The judge would not personally seek permission from the landowners to place signs, but once someone from the campaign has obtained permission, the judge would participate in the posting of the signs. Some of the people or businesses who consent to allowing the signs may have appeared (or could appear in the future) before the judge.

The judge may attend functions and but not post signs

Here, the judge will not be personally seeking permission from the landowners or businesses to post the signs, which reduces the inference of public endorsement. However, the fact that the judge will be posting the signs for the spouse’s campaign could still create the inference of a public endorsement to onlookers. In addition, the judge’s actions could also create the appearance that the judge is lending the prestige of judicial office to advance the spouse’s private interests as a political candidate. Thus, we conclude that the judge should not participate in the posting of a spouse’s campaign signs.

(Mike Frisch)

March 29, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Monday, March 28, 2016

Ready For My Close Up, Mr. DeMille

A new opinion from the Florida Judicial Ethics Advisory Committee

ISSUES

May a judge appear in a documentary concerning a case that the judge prosecuted as an assistant state attorney and that has reached final disposition where the judge will not be identified as a current, sitting judge?

ANSWER: Yes, as long as the matter on which the inquiring judge has been asked to speak has reached final disposition in both the state and federal appellate process.

FACTS

The inquiring judge has been contacted by a television producer about participating and possibly appearing in a documentary concerning a murder case which the judge prosecuted as an assistant state attorney in 2005. The Defendant was convicted and sentenced to thirty-five years in prison. The judge advises that the most recent appellate activity concluded in 2014, and that there are currently no pending appeals. The judge also advises that the judge will be identified in the documentary only as the prosecutor in the case, and will not be referred to as a current, sitting judge. Additionally, the judge will not appear in the documentary wearing a judicial robe or in judicial chambers, but rather, in both a casual setting and clothing.

OK but

We caution, however, that Florida Code of Judicial Conduct, Canon 2(B) states that “[a] judge shall not lend the prestige of judicial office to advance the private interests of the judge or others.” For this reason, the inquiring judge would not be permitted to appear in the documentary, in order to discuss the judge’s prior role in the case as the prosecutor, were the judge to be identified as a current, sitting judge, because that appearance would lend the prestige of the judicial office to the private interests of the documentary producers, and their particular point of view, if any, presented in the documentary. See Fla. JEAC Op. 07-07. As such, the fact that the inquiring judge will not be identified as a current, sitting judge, nor appear in the documentary wearing a judicial robe or in the setting of judicial chambers, is also relevant to this Committee’s opinion that the judge’s appearance would not be prohibited under the Code.

(Mike Frisch)

March 28, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, March 24, 2016

From Bar To Barred

A Village Court Justice has resigned from the bench and barred from future office based on a stipulation entered into with the New York State Commission on Judicial Conduct.

Judge House was apprised by the Commission in March 2016 that it was investigating a complaint that, in or about August 2015, after consuming alcoholic drinks at a local bar, he engaged in public conduct both inside and outside the bar with another patron that was inconsistent with his ethical obligations to act at all times in a manner that promotes public confidence in the integrity of the judiciary and to conduct his extrajudicial activities so as not to detract from the dignity of his judicial office.

His February 23 resignation letter ends "God bless all of you." (Mike Frisch)

March 24, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, March 16, 2016

Peace Bond Misconduct Leads To Removal

A judicial officer has been removed from office by the Louisiana Supreme Court.

There were complaints in two matters that led to proceedings before the Judiciary Commission

The Commission found that respondent repeatedly abused and exceeded his judicial authority, used his office to advance his own personal interests, demonstrated bias and prejudice, exhibited incompetence and gross negligence in the oversight of his office, and exhibited inappropriate judicial temperament and demeanor. In the LeBlanc/Vignes matter, he imposed unlawful jail sentences on two individuals for failing to post peace custody case in another parish, repeatedly extended the terms of peace bonds beyond the maximum term allowed by law and without conducting hearings, and failed to timely refund peace bond monies after peace bonds expired without a forfeiture, including losing track of $2,000 of peace bond money for over two years in his attorney trust account. In the Henderson matter, respondent demonstrated improper judicial temperament and demeanor, failed to properly supervise his staff, and notarized affidavits in support of peace bond applications when the affiants did not appear before him, swear out an oath, or sign the affidavit in his presence. Finally, in both matters, respondent demonstrated a practice of charging fees for peace bonds that were in excess of those authorized by law and of double-charging fees, i.e., charging both the peace bond plaintiff and defendant the same fees for the same services, in order to enrich himself. The Commission further found that respondent is an experienced attorney who knew or should have known better. For this misconduct, the Commission recommended that respondent be removed from office and be assessed with costs. The Commission also recommended that the right to bring lawyer discipline proceedings against respondent be reserved.

Removal is the appropriate sanction

we adopt the Commission’s rationale, and conclude the most severe sanction of removal from office is warranted in this case to protect the integrity of the judiciary and the public from future harm. Respondent’s misconduct as set forth above is so prejudicial to the administration of justice in his justice of the peace court that he cannot be allowed to remain on the bench. In our view, any discipline less than removal would undermine the judicial discipline process and diminish the integrity of the judiciary.

(Mike Frisch)

March 16, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, March 15, 2016

Called Out On Strikes

The West Virginia Supreme Court of Appeals granted a petition for mandamus against a person running for a magistrate position.

The Court concludes that Troy Sexton has been convicted of a misdemeanor involving moral turpitude and therefore, pursuant to West Virginia Code § 50-1-4, he is ineligible to serve as a Magistrate for Putnam County. In light of Mr. Sexton’s ineligibility to serve as a Magistrate for Putnam County, his name shall be removed from the May 2016 election ballot.

Recognizing the significance of election issues to the State of West Virginia and its citizens and given the parties’ request for accelerated consideration and resolution of this matter as it relates to the preparation of ballots in the upcoming primary election, the Court issues its decision through this order with an opinion to follow in due course.

WOWKTV.com reported on the petition

The petition says state law requires that magistrates not be convicted of "any felony or any misdemeanor involving moral turpitude."
    
The [Judicial Investigation Commission]  filing says Sexton pleaded guilty to making harassing phone calls to a woman in 2010, and falsely reporting an emergency incident and driving under the influence in 2014.
    
He pleaded no contest to misdemeanor domestic battery charges in 2009.
    
Sexton says regardless of his past misdemeanors, he's still qualified to run for magistrate.

I cannot confirm but he may also be a fan of the Los Angeles Dodgers as reported by the New York Daily News

A man with a history of abusive behavior was arrested in Cincinnati Tuesday night for violating a lifetime ban and showing up at Great American Ball Park, where the Reds faced the Los Angeles Dodgers.

Troy Sexton, who's come to be known to Dodger followers as "Troy from West Virginia," was charged with criminal trespass and obstructing official business. He also faces a felony burglary count, though it was not clear what prompted that charge.

He is being held in the Hamilton County Jail on a $40,000 bond, the Cincinnati Enquirer reported.

Sexton, 40, of Hurricane, W. Va., was banned from the stadium on the Ohio River in 2008, after his participation in a brawl raised such a ruckus the game was delayed.

He pleaded guilty to disorderly conduct in that incident. A charge of resisting arrest was dropped.

(Mike Frisch)

March 15, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, March 9, 2016

Voucher Censured

The New Mexico Supreme Court recently issued a public censure to a district court judge who

admits that on or about June 19, 8 2014, [he] initiated ex parte communications with Grant County Magistrate  Judge Maurine Laney – concerning a case that was pending before Judge Laney – in an attempt to personally vouch for the character of the defendant and obtain special treatment for the defendant...

 The judge agreed to submit to a formal mentorship and unsupervised probation.

In an unrelated matter, the court publicly censured another judge for improper ex parte communication in a civil matter. (Mike Frisch)

March 9, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

From Outstanding To Out Standing

A district court judge who admitted misconduct was suspended from practice for 90 days by the Minnesota Supreme Court.

[W]hile serving as a district court judge, [he engaged in misconduct by] failing to maintain residency in the judicial district in which he served; making a knowingly false statement in an affidavit of candidacy; and making misleading statements about his removal as a district court judge in a blog.

Minnesota Lawyer has a story on the sanction.

On a better day he received an award as an outstanding judge. (Mike Frisch)

March 9, 2016 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, March 8, 2016

No PTSD Mitigation For Magistrate's Misconduct

The opinion of the Ohio Supreme Court in the case of the Akron Magistrate is now posted and summarized on the court's web page

Williams Had Sexual Relationship With Party in Case
Williams was appointed judge in the Akron Municipal Court in March 2009 and lost a bid to retain the seat in the November 2009 general election. The municipal court judges then hired him as a magistrate, and part of his duties was to oversee eviction cases.

While presiding over a case where a landlord sought to evict a woman identified in court documents as A.B., Williams began a sexual relationship with A.B. and failed to recuse himself from the case. Weeks later, municipal court judges learned A.B. had been arrested for operating a motor vehicle while intoxicated and was referring to Williams as her boyfriend. Williams admitted the relationship to the judges, recused himself from A.B.’s case, and resigned.

After leaving the court, Williams worked at a Columbus law firm, but was terminated in May 2013. Days after losing his job, he and A.B. purchased a used car by listing an address where he had not lived for more than a year and falsely stating a salary with the law firm he just left. With Williams’ consent, A.B altered one of his paystubs to get the car loan, and Williams later defaulted on the loan.

Williams also represented a woman seeking to be appointed to manage the financial affairs of an estate in Summit County Probate Court. The probate court approved a $25,000 wrongful-death settlement to the estate, and the money was deposited in Williams’ client trust account. Williams made several payments on behalf of the estate but failed to comply with a court order to pay about $10,800 for an annuity to benefit the dead man’s three children.

In April 2011, the probate court ordered Williams to close the estate assuming the annuity had been purchased, but Williams informed the court he kept the money in his client trust account and was going to invest in a money-market account to benefit the children. More than a year later, the money had not been transferred, and Williams had taken nearly all the funds from it. In May 2013, he transferred $10,000 of personal funds back into the account. He then depleted the account again and secured personal funds to replenish it. However, while the account still had $10,800, financial experts estimated the children lost about $9,000 by not having the annuity.

The Office of Disciplinary Counsel filed complaints with the professional conduct board that included violation of the Code of Judicial Conduct for Williams’ failure to disqualify himself in cases where his impartiality could be questioned, and for violations of the rules governing attorneys including engaging in conduct involving dishonesty, fraud, deceit or misrepresentation; not acting with reasonable diligence when representing a client; and engaging in conduct prejudicial to the administration of justice.

Williams told the board he had no intention of continuing to serve as the magistrate in A.B.’s eviction case but did not know how to recuse himself. He also said A.B. began abusing him and that he was diagnosed with post-traumatic stress disorder (PTSD) caused by their relationship. He entered into a five-year contract with OLAP.

The Court found Williams failed to establish that PTSD played a role in the causing his misconduct as an attorney, but acknowledged “he practiced law without incident for more than 20 years before he commenced his improper relationship with A.B.” The Court found a two-year suspension with 18 months stayed was appropriate as long as Williams complies with his OLAP contract, continues counseling for PTSD, does not engage in further misconduct, and makes full restitution to the children from the mishandled estate.

In the Court’s majority were Chief Justice O’Connor and Justices Pfeifer, Kennedy, French, and O’Neill.

Justices O’Donnell and Lanzinger dissented, writing that they would impose a two-year suspension without a stay.

2015-0293. Disciplinary Counsel v. Williams, Slip Opinion No. 2016-Ohio-827.

The oral argument is linked here. (Mike Frisch)

March 8, 2016 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, March 3, 2016

The Man From Stanford (Sort Of)

The Oregon Supreme Court has affirmed the dismissal of proceedings against a judge.

The facts, taken from the record, are as follows.

In 2010, before he became a judge, respondent attended a week-long “trial academy” presented by the International Association of Defense Counsel (IADC), held on the campus of Stanford Law School. Although held on the Stanford campus, the academy was not affiliated with that school. Upon completion, respondent received a certificate stating that he “successfully completed the course of instruction at the IADC Trial Academy, Stanford Law School[.]”

In 2013, respondent filed for election to an open judicial position on the Deschutes County Circuit Court. Aspart of his initial form submission to the Secretary of State, under “Education Information,” “Educational Background (schools attended),” respondent listed his college and law school degrees, and under a related section, “Educational Background (other),” respondent identified his participation in the academy as follows: “International Association of Defense Counsel: Trial Academy Graduate, at Stanford Law School.” (Emphasis added.

 After respondent completed his Secretary of State submission, he prepared a voters’ pamphlet statement, limited to a 325-word narrative. To prepare that narrative, he  reviewed the Elections Division’s Candidates Manual for compliance, and he also consulted with colleagues. Respondent decided to include a reference to the academy in a section that contained his college and law school information, which he entitled “Educational Background.” In doing so, he did not include the word “at” before “Stanford Law School,” as he had in his earlier Secretary of State submission; instead, he replaced “at” with a comma. He initially used “IADC” to describe the academy—specifically writing “IADC Trial Academy, Stanford Law School”—but he eliminated that modifier after a judge who reviewed the draft statement suggested that it was not recognizable. Respondent opted not to spell out “IADC” so that he could save four words to use elsewhere in his statement. He asked a different judge to review an updated draft that removed “IADC,” and that judge told him that nothing about “Trial Academy, Stanford Law School,” appeared misleading to him. Respondent’s
final voters’ pamphlet statement therefore stated, “Trial Academy, Stanford Law School,” as part of his educational background.

The assertions became a campaign issue and, after he was elected, an alleged ethical violation.

The court

As to the allegation under Rule 5.1(D) (false statement relating to judicial campaign), the commission determined— as respondent argued below—that respondent’s voters’ pamphlet statement had not been “false” within the meaning of that rule. After reviewing the record, even if respondent’s statement qualified as a “false statement” for purposes of Rule 5.1(D) (which we do not decide), we are not persuaded by clear and convincing evidence that respondent acted with the requisite mental state.

 

(Mike Frisch)

March 3, 2016 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Sunday, February 28, 2016

Judicial Ethics Opinions From South Carolina

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

A Family Court judge is not required to disqualify himself or herself from a proceeding involving their secretary’s attorney. However, the judge should disclose any relevant information regarding any possible disqualification on the record...

Here, none of the judge's relatives will appear as an attorney in a proceeding. See Advisory Opinion 10-2012. The secretary’s attorney is not "the judge’s spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person" as prohibited by Canon 3E. Id. Therefore, the judge is not disqualified from presiding over matters where his or her secretary’s attorney appears. However, under the commentary of Canon 3E, “[a] judge should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification.” Id. In addition, the judge’s secretary should not be involved in any matter in which the attorney representing her appears.

This opinion permits a magistrate judge to serve as executor of the estate of a close friend

A magistrate court judge has an elderly family friend who has appointed the judge as Executor of her will and as her agent under a Health Care Power of Attorney . The judge has known the friend for forty years. The friend is a widow with no children, and the judge has been like a child to her. The friend is considered to be a grandmother to the judge’s own child and is included in all family functions. The judge inquires as to whether serving as Executor of the friend’s will and as the friend’s agent under a Health Care Power of Attorney would violate the Code of Judicial Conduct.

And this opinion blesses service on a foundation board so long as no fund raising is involved.

A retired Circuit Court judge, who still holds court, has been asked to serve on the Board of Directors a charitable foundation that was created in honor of a former client of the judge’s. The foundation is committed to youth development programs to promote Christian values, education, and life-skills development. The foundation’s goal is to build a boys and girls’ center to help at-risk children in the community...

A retired Circuit Court judge may serve on the Board of Directors for a charitable foundation, provided that the judge does not engage in fund-raising and that the judge’s title is not used in any materials published by the foundation.

(Mike Frisch)

February 28, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, February 25, 2016

"Your Favorite Judge"

The Ohio Supreme Court has permanently disbarred a judge convicted of mail fraud.

The report of the Board of Commissioners on Grievances and Discipline had this snippet of the evidence of a conversation with a litigant

Frank Russo: Hello.

Respondent: Frank, your favorite Judge.

Frank Russo: Hey, Stevie, how are you?

Respondent: I'm doing well, how are you?

Frank Russo: I'm doing really, really, really good ...

Respondent: ... Hey Renee called and said you wanted me to call you?

Frank Russo: Yeah, I just wanted to let you know. Did Robin give you those case numbers?

Respondent: Yes.

Frank Russo: OK. In other words, I talked to you about this once before, it's about denying the motions for summary judgment.

Respondent: Yep. I still have the note that you gave me.

Frank Russo: OK. Good. Deny the motions for summary judgment. Good.

Respondent: Got it.

 Frank Russo: Ok, good. No that was all, I just wanted to touch base with
you on that, and that's it ...

 He was convicted of, among other things, accepting gifts from Russo.

The Board

the Board voted to modify the sanction recommended by the hearing panel and recommends that Respondent, Steven James Terry, be permanently disbarred from the practice of law in Ohio.

The court agreed.

Cleveland.com had the story of the criminal trial. (Mike Frisch)

 

February 25, 2016 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (2)