Saturday, July 30, 2016
A Vermont assistant judge has been charged with violations of the Canons of Judicial Ethics relating to his dealings with an elderly relative.
In approximately October, 2009 Katherine ("Kay") Tolaro, who is Respondent's father's brother's second wife, moved into Respondent's home in Westminster, Vermont. She was 82 at the time and showing signs of dementia.
The charges allege misconduct both before and after Ms. Tolaro's death.
Perhaps the most unsavory charge
On July 31, 2015 Respondent filed a manifestly implausible claim against Ms. Tolaro's estate for $833,292.51. Among other things, Respondent's wage calculation left only 4 hours per week for Respondent to work, sleep or do anything other than care for Ms. Tolaro. Given that he was employed at the time, that is not possible. Asserting such a manifestly unsupportable claim does not comport with high standards of integrity and candor expected of judges by the Judicial Code.
He also is charged with giving "not entirely truthful" testimony in the related probate proceeding described below.
Seven Days has a detailed story on the situation and the history of so-called Side Judges.
Paul Kane filed a motion to try to avoid testifying in Windsor County Probate Court, but a judge ordered him to talk. As soon as he took the witness stand last November, it was obvious why he'd been reluctant. For 90 minutes, an attorney grilled Kane about whether he'd bilked an elderly woman with Alzheimer's disease of roughly $500,000.
Brattleboro attorney Jodi French asked Kane why, after the ailing Catherine Tolaro granted him power of attorney, he purchased an $180,000 annuity with her money and named himself the beneficiary.
Under French's questioning, Kane claimed that he did so with Tolaro's interests in mind...
Despite his apparent discomfort throughout the hearing, Kane knows his way around the courtroom. In fact, he's a Windham County assistant judge who was elected two years ago. But like most of Vermont's 27 other assistant judges, who advise regular judges in civil and family court cases and occasionally preside over minor cases, Kane does not have a law degree.
Nonetheless, attorneys in the Tolaro estate case say Kane, 63, may have flouted laws and regulations when he converted the funds of the elderly woman he called his "aunt." They are considering whether to refer the case for further investigation to the Department of Financial Regulation, a state agency that regulates bank transactions, once the estate is settled.
Kane has claimed that any irregularities in his handling of Tolaro's estate were due to mistakes and poor understanding of relevant laws. He says he is the victim of "character assassination."
As to Side Judges
The ongoing case is the latest controversy involving assistant judges, colloquially known as "side" or "lay" judges, who retain an antiquated role in the Vermont judiciary despite repeated attempts to strip them of power.
In recent years, side judges in Vermont have been caught directing taxpayer money to their own charities, shoplifting from local stores, doling out bonuses to themselves from public budgets and accusing each other of assault.
Those embarrassing episodes, along with concerns that side judges lack legal training and operate with almost no oversight, have fueled arguments against preserving their positions.
Their harshest critics tend to be traditional judges, some of whom believe that "these people aren't really adequately trained and prepared, and they ought not participate on important decisions in people's lives," said Vermont Law School professor Peter Teachout, who has consulted for the Vermont judiciary. "A prevailing view — not a unanimous view — in the judiciary is that they couldn't be relied upon to perform even a limited judicial function. There's been clear hostility to allowing lay judges to have any legal function."
VTDigger.com reported on the recently-filed ethics allegations.
The events leading up to the complaint filed against Paul Kane, of Westminster, began in October 2009, when Kane moved into the Westminster home of his uncle’s second wife, Catherine Tolaro, who was 82 at the time and showing signs of dementia. That same month, Tolaro executed a “Limited Power of Attorney For Finances” granting Kane and his wife the ability to obtain financial information on her behalf. One month later, Tolaro executed a will that gave 30 percent of her assets to charity and distributed the rest to six beneficiaries, one of whom was Kane. At the time, Tolaro’s net worth was $767,500. Over the next six years, Tolaro’s estate dwindled away, as Kane issued a pair of loans and made claims against the state for the costs of Tolaro’s care.
In July 2015, Kane filed a written statement of claim against Tolaro’s estate, claiming $833,292.51 was owed to him, including $722,740 for caring for her at $18 per hour, 159 hours per week (a week contains a total of 168 hours) for 135 weeks. This amounted to around the clock payment except when a home care nurse was there for two to three hours three times per week.
The claim also included $20,925 for 31 months of room and board calculated at $675 per month, $7,800 due to (Kane) and his wife for financial and property management and $31,827.51 for “expenses advanced to the estate by Paul Kane from April 21, 2012 to July 31, 2015.”
Tuesday, July 26, 2016
The Columbus Dispatch has a story of a judge's reinstatement to the Ohio Bar.
Former Franklin County Judge Harland H. Hale's license to practice law was reinstated today by the Ohio Supreme Court.
Hale's license was suspended in 2014 for six months for fixing a speeding ticket for a fellow lawyer and for attempting to cover up his action. He did not seek reinstatement until June this year. The court approved the reinstatement today.
Justices voted 5-2 in Nov. 2014 to suspend the license of the former environmental court judge who occasionally was assigned to municipal court to handle traffic cases.
The court first rejected a recommendation by the disciplinary counsel that six months was too lenient a suspension, but later accepted the same sentence, with Chief Justice Maureen O'Connor and Justice Judith Ann Lanzinger dissenting that it was not harsh enough.
Hale admitted improperly dismissing a 2011 speeding ticket issued to Patrick M. Quinn, a lawyer whose firm was defending Hale in a sexual-harassment case, later settled out of court. Hale also falsified a court entry stating that the prosecutor had dismissed the ticket. Quinn pleaded guilty to speeding and paid $171 in fines and costs.
The Dispatch revealed that Hale fixed the speeding ticket. Hale resigned from the court, but still wants to practice law.
The court cited Hale for "serious violations of his ethical duties as both an attorney and judge" as well as "efforts to cover his tracks."
Earlier coverage from the Columbus Dispatch.
Former Franklin County Environmental Court Judge Harland Hale argues he already has paid a big price for fixing a speeding ticket.
The ex-judge shed tears yesterday as he talked about resigning on May 24 in response to a charge that he dismissed a ticket issued to a lawyer whose firm was defending Hale against sexual-harassment lawsuits.
He talked of losing his seat on the bench and his fear of what the epitaph on his grave marker might read, of disappointing dirt-poor parents who only ever asked that he do what was right.
The Ohio Supreme Court order is linked here. (Mike Frisch)
Sunday, July 24, 2016
A judicial ethics opinion from South Carolina Advisory Committee on Judicial Conduct answers the following question
A family court judge has been requested to fill out a detailed questionnaire, on behalf of a family member, for use in an annulment proceeding within the Catholic Church. The questionnaire seeks information as to the judge’s opinion of the strengths, weaknesses, traits, and honesty of the judge’s relative and the relative’s former spouse. The questionnaire also seeks detailed facts as the courtship, wedding, marriage, and breakdown of the marriage. The response is required to be notarized. The information will be used by the Catholic Church in determining whether the judge’s relative is entitled to an annulment. The judge inquires as to whether it would be proper, under the Code of Judicial Conduct, to complete such a survey.
The detailed questionnaire here seeks the judge’s opinion, in part, as a character witness regarding the judge’s relative and the relative’s former spouse. In addition, the judge’s completion of the questionnaire could be considered a use of the judge’s position to gain an advantage for his relative’s claim in the annulment proceedings. Thus, it would not be proper for the judge to serve a witness (by completing the questionnaire) to the tribunal.
Thursday, July 21, 2016
The Maine Supreme Judicial Court has sanctioned a judge charged with misconduct in
statements he made in a letter to counsel regarding a court proceeding in which he was a party, and based on his judge-related Internet and social media activity.
The letter violated canons of judicial conduct; the social media activity did not.
...because of the seriousness of this violation, we impose a public censure and reprimand, and a thirty-day suspension from the performance of his duties as judge of the York County Probate Court.
The social media issues
Two of the charges filed by the Committee are based on information that Judge Nadeau posted on the Internet—specifically, a website and a Facebook page—in association with his 2012 election campaign. We address those allegations in turn.
After Judge Nadeau was re-elected to judicial office in 2012, a marketing and media consultant retained by Judge Nadeau either created a new website or modified an existing one so that it was entitled, “York County Probate Judge Robert Nadeau.” That website, which showed Judge Nadeau wearing a judicial robe, was his personal website and not an official website of the York County Probate Court. It also provided a link to the website of his private law office. By using that link, a person who viewed Judge Nadeau’s personal judicial website could then move directly to the website for Judge Nadeau’s private law office. In Count 1 of its report, the Committee alleges that Judge Nadeau violated Canon 2(B), see supra n.8, by using the judicial office for personal gain...
As the Hearing Justice found, Judge Nadeau provided the link to the website of his private law office on the judicial website for the purposes of eliminating confusion within the general public and preventing instances where a person who wanted to contact him in his capacity as a lawyer mistakenly contacted the Probate Court. The link did not actually generate any business for Judge Nadeau’s law office. Further, Judge Nadeau promptly removed the link to his private law office as soon as a complaint was made, effectively resolving the Committee’s concerns about the issue. In this matter of first impression, these circumstances weigh against a formal finding of judicial misconduct.
Word to the wise
When a part-time judge, acting in a judicial capacity, establishes a pathway on a judicial website for a user to contact the judge with the prospect of a remunerative benefit to the judge, the judge may create the perception of using the judicial office held in public trust as a means to create a private, commercial advantage. Any such conduct by a judge must be preceded by a careful and sensitive consideration of the requirements of the Canons and the critically important goals they are designed to achieve.
In 2013, while a judge but in his personal capacity, Judge Nadeau commenced an action in the Maine District Court for protection from harassment against his former girlfriend, who lived in Massachusetts. Judge Nadeau was not represented by counsel in that proceeding, but an attorney represented his former girlfriend. In his complaint for protection from harassment, Judge Nadeau alleged that the former girlfriend improperly disclosed confidential or otherwise private medical and other information about him. While the case was pending, Judge Nadeau wrote a letter to the former girlfriend’s attorney of record, stating,
You know that, putting aside your training and evident desire to simply argue and advocate, you need to advise your client to pull her book and internet advertising immediately, at a minimum, under the circumstances. This is a matter of, at the minimum, clearly protected medical privacy. The consequences of not doing so can be devastating, not only for her and her best friend, but probably even for you, and their former or current [Massachusetts] lawyer. . . . You can posture all you want in the interest of advocacy. But absent immediate, legitimate responsibility and cooperation designed to achieve amicable, nonmonetary resolution of whatever issues your client and I apparently have, I respectfully submit this is going to become very bad for your client, you and your law firm.
A footnote in the letter
I am incidentally in possession of a hard copy of an email from [an attorney] of your firm to [York County Probate] Register Lovejoy in which [the attorney] snidely referred to me as “his eminence.” If that was not meant to be pejorative or disrespectful of me as a jurist and an ethical violation, I request [the attorney’s] full explanation within 10 days from the date of this letter.
His comments about the judge did not violate judicial ethics
we conclude that because Judge Nadeau’s disparaging comment about another Maine judge was not public and concerned a case in which he was a litigant, it was not prohibited by the Code. We acknowledge, however, the concerns underlying the Committee’s argument.
The judge had been sanctioned both as an attorney and a judge
this is now the third time that Judge Nadeau has been found to have violated professional ethical standards. In Judge Nadeau’s capacity as a lawyer, a Single Justice of this Court determined that he violated the Maine Bar Rules by making “discourteous and degrading” statements to a judge. Bd. of Overseers of the Bar v. Nadeau, BAR-05-03 (March 2, 2006) (Alexander, J.). The Justice publicly reprimanded Judge Nadeau and ordered him “to conduct himself in the future so as to avoid further occasions of professional misconduct.” Id. Then, in a judicial disciplinary proceeding, we found that Judge Nadeau violated the Code of Judicial Conduct by lying about an electoral opponent during a campaign for judicial office. See In re Nadeau, 2007 ME 21, ¶¶ 2, 18-19, 26, 914 A.2d 714.
The same court issued an opinion in the judge's divorce case that did not shower praise on him
In a detailed and strongly−worded decision, the [lower] court found that Robert had a “self-centered and insensitive world outlook” and had engaged in “self-destructive behavior that has caused the break-up of his marriage, the break-up of his law firm, and a significant amount of litigation.”
...Robert contends that the court’s criticism of him in its findings rises to a sufficient level to constitute bias. The court’s findings that were critical of Robert were based on competent evidence, are not clearly erroneous, and do not establish improper bias. In addition, the record reflects that the trial judge demonstrated evenhandedness and patience with both parties throughout a highly contentious trial process.
Thursday, July 7, 2016
The Florida Supreme Court had to judge a judge
In this case, we review the revised consent judgment entered into by the Florida Judicial Qualifications Commission (JQC) and Seminole County Judge Jerri Collins. The revised consent judgment imposed the following sanctions on Judge Collins: a public reprimand before this Court, completion of an anger management course, and attendance at the domestic violence course offered during Phase II of the Florida Judicial College. We have jurisdiction. See art. V, § 12, Fla. Const. For the following reasons, we approve the revised consent judgment.
The judge engaged in misconduct
when she berated and belittled a victim of domestic violence for failing to respond to a subpoena issued by the State Attorney to testify in the trial against her abuser, who is the father of her child. As a result of the victim’s failure to appear, the State was unable to proceed with the trial. Consequently, the State dismissed a charge against the defendant for dangerous exhibition of a weapon and the defendant accepted a plea to a reduced charge of simple battery.
Judge Collins issued an order to show cause why the victim should not be held in contempt of court for violating the trial subpoena by failing to appear for trial. When the victim appeared before Judge Collins, the judge instituted direct criminal contempt proceedings in which the victim was not represented by counsel nor advised of her right to present evidence or testimony on her own behalf. During the contempt proceedings, Judge Collins was discourteous and impatient toward the distraught victim. The victim apologized for failing to appear, citing anxiety, depression, and a desire to move on from contact with her abuser as reasons why she did not appear for trial. Meanwhile, Judge Collins raised her voice, used sarcasm, spoke harshly, and interrupted the victim. Judge Collins found the victim in contempt of court and sentenced her to spend three days in jail even though the victim pleaded with the court that she needed to take care of her one-year-old child.
Furthermore, Judge Collins’ behavior created the appearance of partiality toward the State. After pressing the victim about the veracity of her statements to police, Judge Collins rebuked her for failing to appear to testify, declaring “You disobeyed a court order knowing that this was not going to turn out well for the State.” Judge Collins noted that the victim previously indicated to the State Attorney that she was not going to show up. The victim further disclosed that at a domestic abuse class she asked them to drop the charges because she was trying to move on with her life. Moreover, the victim declared that she was “not in a good place,” a remark to which Judge Collins responded, “and violating a court order did not do anything for you.”
The court had rejected an earlier proposed consent reprimand
The revised consent judgment subsequently entered into by the JQC and Judge Collins includes terms more appropriate to address the acts of misconduct in this case. Thus, we approve the terms of the revised consent judgment requiring Judge Collins’ appearance before this Court for a public reprimand, completion of an anger management course, and attendance at the domestic violence course offered during Phase II of the Florida Judicial College. We recognize that Judge Collins completed an anger management course on April 29, 2016, satisfying the sanction imposed by the revised consent judgment.
Tuesday, July 5, 2016
The Indiana Supreme Court took action to remove a judge in a contract case
This Court has exclusive, original jurisdiction to supervise the exercise of jurisdiction by other Indiana courts. See Ind. Const. art. 7, § 4; Ind. Original Action Rule 1. The Court’s participating members have reviewed and discussed the filed materials. The Court’s majority concludes the State is entitled to a change of judge. Accordingly, the Respondents, the Marion Superior Court and the Hon. David J. Dreyer, are ordered to vacate all orders issued in the underlying case on or after May 6, 2016, and to grant the change of judge. Judge Dreyer is prohibited from exercising jurisdiction in the underlying case except that necessary to comply with this opinion and effectuate the change of judge. This opinion is final and effective immediately; petitions for rehearing or motions to reconsider are not allowed. See Orig. Act. R. 5(C).
The Journal Gazette has some details in this May 2016 post
A Marion County judge on Friday issued a bombshell ruling refusing to give any damages to the state even though the Indiana Supreme Court found in March that IBM breached its $1.3 billion welfare contract with Indiana.
The case was remanded to Marion County Judge David Dreyer to determine an appropriate amount of compensation. Indiana had claimed $175 million in damages.
“The court largely finds the state fails to prove damages by a reasonable certainty,” Dreyer said in his decision. “The evidence is insufficient because of its hearsay and speculative nature.”
He added later that many of the costs for which the state sought reimbursement are costs that were the state’s responsibility and therefore may not be recovered.
For instance, Dreyer said the state sought $30 million it paid in salaries for new state staff but the evidence shows the staff – many of whom were hired before the termination – were hired for reasons that had nothing to do with IBM.
Dreyer’s ruling came without a hearing or briefs filed by the parties, and just hours after the Indiana Supreme Court had certified the case.
Certification essentially closes a case out and sends it back to the lower court to act on the appellate ruling.
“Respectfully, we believe the trial court’s surprise order Friday morning was mistaken and also exceeded its jurisdiction,” said Peter Rusthoven, one of the state’s lawyers in the case. “We are confident that this latest ruling, like the earlier rulings ordering that Governor (Mitch) Daniels be deposed and then holding that IBM had not materially breached its contract, will not be allowed to stand.”
The ruling is the latest volley in a six-year dispute over whether IBM failed to deliver its part of a deal to privatize Indiana’s welfare system.
Rusthoven said Dreyer’s new decision came before a 10-day period for the state to move for a mandatory judge change.
That motion was filed Friday afternoon and Barnes & Thornburg LLP “will promptly take steps seeking to have the trial court’s ruling set aside,” a statement said.
Clint Roswell, spokesman for IBM, said “it’s unfortunate that the private attorneys representing the state in the case have decided to prolong this case, all at the great expense of Indiana taxpayers.”
The state has paid Barnes & Thornburg more than $11.5 million in the legal battle with IBM.
In March the Indiana Supreme Court overturned Dreyer’s 2012 decision finding IBM didn’t breach its contract with the state.
The trial before Dreyer lasted six weeks and included more than 130 hours of testimony and 100 witnesses.
“Neither party deserves to win this case,” he ruled then. “This story represents a ‘perfect storm’ of misguided government policy and overzealous corporate ambition. Overall, both parties are to blame and Indiana’s taxpayers are left as apparent losers.”
The 4-0 Indiana Supreme Court decision found IBM “failed to perform satisfactorily … consistently failed to meet certain timeliness metrics, and failed to assist the state in achieving its policy objectives.”
Dreyer did issue a ruling that agreed with the Indiana Supreme Court ordering the state to pay IBM $40 million in assignment fees and $9.5 million in equipment fees. A third component of the suit regarding contract change orders was not yet decided.
Indiana had planned to modernize the welfare system by moving to a “remote eligibility” system, in which Hoosiers seeking food stamps, Medicaid and other public assistance no longer would have face-to-face meetings with case managers but would instead apply online and through call centers.
Daniels canceled the contract after three years of complaints about the automated system. Indiana had paid IBM $437 million. The state then created a hybrid system.
Indiana sued IBM in May 2010, and IBM countersued.
Friday, July 1, 2016
A Louisiana judge was suspended for a year without pay for misconduct that included on-the-bench comments that displayed a joking attitude to domestic violence victims
While presiding over Mr. Williams’s criminal case, Respondent made an inappropriate comment and displayed a joking, jovial attitude toward women who had been abused by men. After being told that Mr. Williams was charged with domestic abuse by strangulation, Respondent and Assistant District Attorney Ken Fabre took part in the following exchange:
The Court: That’s what it was? All right. Domestic abuse battery by strangulation. Is she alive? Yes indeed. Now the victims know exactly what to say. [Assistant District Attorney]: Exactly. The Court: It’s amazing. But, anyway, I digress.... (Emphasis added.)
In his post-hearing brief, Respondent states that he was “simply asking a question in order to better understand the law and to determine whether the charge was a felony and was also pointing out an anomaly, or internal inconsistencies, in the law of domestic battery...” In his judicial misconduct hearing, Respondent testified that he was genuinely confused about the meaning of strangulation in the context of domestic abuse.
In another case
While presiding over Mr. Braxton’s criminal case, Respondent made inappropriate comments and displayed a joking, jovial attitude toward women who had been abused by men.
There were similar comments in a second domestic violence case
While presiding over Ms. Williams’ criminal case, Respondent made insensitive, discourteous, and injudicious comments, leading to outbursts of laughter. Ms. Williams was charged with, among other offenses, theft of goods from a Wal-Mart store. After Respondent was informed that Ms. Williams had confessed to taking Aveeno lotion, he asked her: “What’s wrong, you was ... What, your skin was ashy? [Laughter] You were ashy trying to get your skin right with some Aveeno?” The comments caused audible laughter in the courtroom. Respondent continued: “Come on ... What was it? ... What did you need that lotion for?
There were a number of similar incidents.
In his brief to the Commission and at his appearance before the Commission, Respondent apologized if his use of slang and facetious language and otherwise unnecessary comments “has either personally offended anyone or offended the dignity of the proceedings in his courtroom.” He explained it was never his intention to be disrespectful of women who are abused. In his brief to this court, Respondent offers his clear, unequivocal, unconditional, and heartfelt apology for his language and his use of slang. He states it was never his intent to offer a conditional apology and, if there has been any confusion in this regard by the use of the word “if,” blame should be placed on his counsel.
The court noted the judge's prior discipline
After considering the Chaisson factors, some of which may be regarded as aggravating and some as mitigating, the Commission recommended Respondent be suspended without pay for one year. We, too, have considered those factors, and after reviewing the record agree that a one-year suspension without pay is appropriate in this case. We also accept the Commission’s recommendation that Respondent be ordered to reimburse and pay to the Commission $11,098.68 in hard costs.
consistency in sanctioning suggests that the one-year suspension imposed by the majority is overly punitive in nature and that a lesser sanction is warranted under the facts of this case, particularly since the charges in this case do not involve misconduct that occurred following the sanction imposed in the prior case of In re Free, 14-1828 (La. 12/9/14), 158 So.3d 771.5
Justice Clark also would impose a lesser sanction. (Mike Frisch)
The Louisiana Supreme Court suspended a judge without pay for 15 days for his early termination of the probation of a member of his church.
This matter concerns Judge Best’s handling of a motion to terminate the probation of Antonio Garcia. In June 2009, based on having exchanged a series of lewd and lascivious texts and emails with a sixteen-year-old student at the school where Mr. Garcia taught, Mr. Garcia plead guilty to indecent behavior with a juvenile and was sentenced to five years of active supervised probation. Mr. Garcia’s prosecution was handled by the Attorney General’s office because the District Attorney’s office recused itself.
On May 17, 2011, a little less than two years into his five-year probation, Mr. Garcia, without the assistance of an attorney, filed a motion to terminate probation. The Attorney General’s office did not receive a copy of the motion. The motion to terminate probation did not include an order or rule to show cause by which the matter could be set for hearing.
At some point after Mr. Garcia’s sentencing, Judge Best had become personally acquainted with Mr. Garcia through their mutual involvement with the church they both attend, as well as through Judge Best’s work as the director of the church choir and Mr. Garcia’s membership in the choir. When Mr. Garcia filed his motion to terminate probation, Judge Best told him, outside of court and through their social connection, that he had received the motion and that it could not be set for hearing without an order to that effect. Judge Best told Mr. Garcia that he should seek legal advice and then provided him with the names of several attorneys who could possibly assist him, including the name of David Marquette, an attorney with whom Judge Best shared a close social relationship.
After receiving the motion filed by Mr. Garcia, Judge Best engaged in ex parte communications with Mr. Garcia’s probation officer concerning the merits of the motion that were designed to influence his judicial action. Judge Best asked the probation officer to contact the victim’s family to find out the family’s position regarding the proposed early termination of Mr. Garcia’s probation. When the probation officer informed Judge Best of the opposition expressed by the victim’s father, Judge Best asked the probation officer to locate the victim, who was now an adult. Judge Best also discussed the merits of Mr. Garcia’s motion with the District Attorney and with the Livonia Chief of Police.
On December 15, 2011, Mr. Marquette enrolled as Mr. Garcia’s counsel and moved to have the matter set for a hearing. Judge Best signed the order and set the hearing for January 6, 2012. Judge Best also ordered the clerk of court to subpoena the probation officer to appear at the hearing. On January 6, 2012, after Judge Best finished his drug court docket, Mr. Garcia’s case was called for hearing. At that time, the District Attorney’s office informed Judge Best that it had recused itself from prosecuting the case and that the Attorney General’s office had not been served with the motions filed by Mr. Garcia or his counsel, nor had it been notified of the hearing date.
The judge told the prosecutor to just be a court-watcher for the hearing.
During the hearing, Judge Best: (1) questioned the probation officer regarding the opinions of others concerning the early termination of Mr. Garcia’s probation; (2) stated that the father of the victim was “indifferent” towards the proceedings even though the probation officer’s unrebutted testimony was that the victim’s father opposed the early termination of Mr. Garcia’s probation; and (3) made statements concerning his own personal observations of Mr. Garcia’s character gained through his interaction with Mr. Garcia at church and further indicated that those personal and out-of-court observations provided some basis for terminating Mr. Garcia’s probation early. At the conclusion of the January 6, 2012 hearing, Judge Best issued an order terminating Mr. Garcia’s probation.
When the order was reported in the media, the judge reinstated the probation.
Chief Justice Johnson
I am deeply troubled by the favoritism shown to Mr. Garcia by Judge Best. Not only did Judge Best engage in misconduct by using the power of his office to terminate a criminal defendant’s probation without giving the prosecuting agency notice or an opportunity to participate in clear violation of La. C. Cr. P. art. 822,1 I find his actions in doing so were motivated by his personal feelings towards Mr. Garcia and his family. In my view, Judge Best’s actions demonstrate actual bias towards Mr. Garcia, such that recusal was likely warranted.
The Chief Justice would suspend for 30 days.
WAFB 9 reported on the crime and the judge's actions. (Mike Frisch)
Tuesday, June 28, 2016
The West Virginia Record has a story on an ongoing bar discipline case
The state Lawyer Disciplinary Board has asked the West Virginia Supreme Court of Appeals to disbar a Morgantown attorney it claims violated the Rules of Professional Conduct.
Edward R. Kohout faces four counts with several charges of rule violations under each of them, according to the amended formal statement of charges filed Dec. 11 with the state Supreme Court.
On Nov. 20, the JIC determined that Kohout was engaging in serious violations of the Code of Judicial Conduct, according to the statement of charges.
The JIC concluded that Kohout engaged in a pattern of egregious and notorious verbal abuse that is likely to cause irreparable harm to others and on the judicial system.
“Of critical importance, because the effect of his wrongful activity is unlikely to cease during the pendency of the 2016 judicial campaign, the only procedural method available to stop him is injunctive relief from the Supreme Court of Appeals of West Virginia,” the statement of charges reads.
The JIC unanimously determined that probable cause existed to formally charge Kohout with violations of the West Virginia Code of Judicial Conduct and the West Virginia Rules of Professional Conduct.
Kohout, who has been practicing law in West Virginia since 1987, filed pre-candidacy papers in June 2015 for Monongalia circuit court judge. In July 2015, a Facebook page was made for the campaign and the majority of the posts on the site referred to his judicial campaign.
On Sept. 2, counsel for the JIC informally inquired about an undated Facebook solicitation and Kohout responded that the solicitation was accidentally posted to his personal page and had been corrected and that no one had sent funds. After he was questioned about the inappropriate solicitation, Kohout removed it and assured JIC counsel that he would refrain from personally soliciting campaign contributions in the future.
After the ethics complaint was filed, revealed two more solicitations from July and August, Kohout responded that he had no role in the two posts soliciting funds and that there was no functional difference in his committee putting a posting on the Facebook page asking for donations than what other candidates were doing.
While Kohout denied many any personal solicitations, he never said who made the posts and JIC’s counsel made the point to the Commision that the person who has a Facebook page is normally the only one who can access it and make posts unless that person gives someone else privileges by either providing them with the e-mail account and password or assigning them administrative rights.
In the posts, Kohout speaks in the first person and one of the posts was made after he became the sole administrator of the campaign Facebook page.
“It is for these reasons that the JIC has concluded that Edward R. Kohout has not been truthful in his representation to our counsel,” the statement of charges reads.
The second charge against Kohout involves his campaign bank account. The account was created on June 24, 2015, for “Ed Kohout for Judge” at the Morgantown branch for BB&T. Kohout gave $20 to open the account and the balance has remained at $20 with no deposits or withdrawals from its inception through Oct. 30.
A judicial candidate cannot be on the signature card, according to JIC Advisory Opinion 2/15/95. Kohout also declined to address the makeup of his campaign bank account in his Nov. 2 response to the ethics complaint, despite specifically being requested to do so by JIC counsel.
The third charge against Kohout involves maintaining dignity appropriate to judicial office. Between July and November, Kohout made derogatory and hateful comments, including describing government receptionists as “dumbass coloured women” and stating that “too many women taking men’s jobs trying to be men when they oughta be home taking care fo [sic] the kids.”
He also described people of middle eastern descent as “Ahab,” “Arab,” “camel bangers” and “ragheads.”
“In yet another supercilious post he said that ‘many black men beat their women’ and ‘so many run off’ leaving ‘single while women and their white parents to raise the babies.’ He also said that ‘white women who date black men are trash and ruined.’”
On Jan. 15, Kohout and the Judicial Disciplinary Counsel entered into a written agreement in which Kohout agreed to never again seek judicial office by election or appointment in West Virginia, according to a Feb. 5 stipulation and recommended discipline document.
In a March 15 order from the Judicial Hearing Board, the board recommended that Kohout receive a public censure for his violations; that in lieu of a fine, he be ordered to pay the ultimate costs of the investigation and prosecution in the amounts of $3,307.95 as of Jan. 28 and at a rate of $200 per month beginning 30 days after the conclusion of proceedings; and that Kohout be barred from ever seeking any judicial office again.
W.Va. Supreme Court of Appeals case number: 15-1190
The attorney had been suspended by the West Virginia Supreme Court of Appeals for two years in 1995.
The misconduct involved, in part, his failure to disclose to the University of Pittsburgh Law School that he had been suspended from the Cumberland School of Law of Samford University as a result of an accusation of selling stolen law books. He also had failed to disclose the suspension in his bar admission application. (Mike Frisch)
Friday, June 17, 2016
The Iowa Supreme Court has opined on a magistrate's marketing of wedding services
A magistrate maintained a website where he posted information regarding his availability to perform marriage ceremonies at locations other than the courthouse for a fee. The website included some photos of the magistrate wearing his robes while performing such ceremonies. The magistrate self-reported his conduct to the Iowa Commission on Judicial Qualifications after becoming concerned that this website might violate our ethics rules for judicial officers. The Commission found that the magistrate violated the Iowa Code of Judicial Conduct and filed an application for the imposition of judicial discipline. The Commission recommended the magistrate be publicly reprimanded.
After the Commission issued its recommendation but before the matter was submitted to us, the magistrate resigned. Because of the importance of the underlying issues, we will address whether any violations of the Iowa Code of Judicial Conduct occurred. We conclude the code does not per se bar a judicial officer from publicizing his availability to perform marriage ceremonies, but some aspects of the advertising here violated the code.
...we conclude Magistrate Martinek committed violations of Canon 1 and rules 51:1.2 and 51:1.3 by (1) including advertising about performing marriage ceremonies on his private law practice website, (2) including photos of himself in his judicial robes on his private law practice website, and (3) not disclosing in his advertising that he would perform weddings for no charge during his regular office hours at the courthouse.
Justice Zager concurred
I concur in the majority opinion. I write separately to voice my disagreement with what I see as the majority minimizing the violation of our rules. In my opinion, a judge placing a marriage tab on a private law practice website is clearly an "abuse [of] the prestige of judicial office to advance the personal or economic interests of the judge." Iowa Code of Judicial Conduct R. 51:1.3. The only reason that a private attorney would have such a tab on his or her website is because he or she is a judicial officer who can perform marriage ceremonies. In other words, the ability to perform marriage ceremonies is a prestige of judicial office...
...I would adopt the rule endorsed by the Colorado Judicial Ethics Advisory Board, which advised Colorado judicial officers that "a judge may not send fliers to wedding planners or otherwise advertise [his or] her availability to perform weddings, such as through a personal website or yellow pages advertisement." Colo. Judicial Ethics Advisory Bd., Op. 2007-05, 2007 WL 7603068, at *1 (2007). This is a commonsense, bright-line rule all judicial officers should be expected to follow. Here, as in many jurisdictions today, a judicial officer may have his or her name and contact information displayed on a court’s official website or posted at the courthouse. See id. at *2. The judicial officers are also generally free to make whatever arrangements are convenient for them and for members of the public who request their services. See Iowa Code § 595.12(1). Unlike the majority, I perceive judicial officers advertising services they are able to provide due to the prestige of judicial office to be a serious problem—even if the advertising is not associated with a private law practice. Do we really want our judicial officers advertising for wedding services on the Internet or through the yellow pages? I think such advertising amounts to a violation of our canons and rules—even when it is not connected to a private law practice. For these reasons, I specially concur.
Monday, June 13, 2016
A Rochester City Judge should be censured according to a report of the New York Commission on Judicial Conduct for ex parte communications with a colleague in her own personal injury case.
They were on a first name basis and worked in the same courthouse. She called chambers and was immediately put through
Upon reaching Judge Odorisi, respondent told him, in sum and substance, "I need to talk to you," and he responded, "Well, it can't be, it's not about this, your case, is it?" Respondent replied, "Well, actually, it is." Judge Odorisi immediately told respondent that he could not talk to her about her case.
Over Judge Odorisi's repeated objections and his efforts to terminate the conversation, respondent communicated to Judge Odorisi that she was unhappy with her attorney, that she wanted to avoid publicity, that she wanted to have the case transferred out of Rochester, and that she wanted a conference at which she, the attorneys and the insurance adjuster would be present.
Ms. Ware, who had left her desk after transferring the call, was in Judge Odorisi's office during the conversation. She heard Judge Odorisi tell the caller several times that they could not discuss the case. According to Ms. Ware, the phone call lasted approximately two to three minutes.
The judge testified that the call lasted for 12-15 seconds.
There was a second ex parte contact by letter.
On two occasions, respondent violated fundamental ethical principles by privately communicating with the Supreme Court Justice who was presiding over her pending lawsuit against her insurance company. First, in a telephone call to his chambers that she initiated, respondent asked the judge to schedule a conference in the matter and conveyed other concerns about her case. Several days later, after both Judge Odorisi and her lawyer had advised her that such communications were ethically impermissible, respondent ignored those warnings and sent the judge an ex parte letter that contained substantive information about her alleged injuries and medical treatment. By engaging in such conduct, respondent conveyed the appearance not only that she was seeking special consideration because of her judicial status, but that she was attempting to influence the judge handling her case through prohibited, unauthorized ex parte communications. Even absent a specific request for special consideration, such conduct is inimical to the role of a judge, who is required to observe the highest standards of conduct on and off the bench and is prohibited from asserting judicial influence to advance private interests.
Mr. Emery concurred
Judge Dixon is an individual who, through her faith, character, force of will and personality, got her education, became a lawyer and then a judge. She appears to have overcome numerous obstacles in her life to have attained her judicial position...
Judge Dixon got no more money than was offered and no one responded to her improper efforts. No ticket was fixed. No merchant gave her goods. No crime went unpunished or improperly imposed. No one, other than Judge Dixon, suffered the ignominy or injury of her lost bearings.
Judge Klonick would remove the judge from office.
While I recognize that in some instances judges who abused their judicial position have been censured or admonished, the aggravating factors noted above, in my view, make this case one of the most serious the Commission has ever encountered for this type of conduct. This is particularly so since in this case - unlike, for example, the assertion of judicial influence in traffic cases or in administrative matters with no adverse party - respondent's abuse of her judicial position to advance her own interests would be detrimental to the opposing party who lacks access to special influence...
although respondent has conceded - as she must-that her conduct was wrong, genuine contrition is lacking, given her persistent efforts to rationalize and minimize her behavior.
Judge Ruderman joined the dissent.
The Commission's press release describes the determination.
Commission Administrator Robert H. Tembeckjian made the following statement.
"No one should invoke the prestige of judicial office for private gain. While there is disagreement over the appropriate sanction in this case, there is no doubt that Judge Dixon’s misconduct was serious and warrants public discipline.
"This case is a study in ethical contrasts. Twice, Judge Dixon acted improperly and in the process put another judge at risk. Yet that other judge, J. Scott Odorisi, responded responsibly, tried to prevent a colleague from acting unethically and acted honorably throughout."
Friday, June 10, 2016
A recent opinion of the Florida Judicial Ethics Advisory Committee
May a judicial candidate who is married to a judge utilize the judge’s photograph in campaign advertising?
ANSWER: Yes, so long as the judge’s position is not identified and the advertising does not imply that the judge actively endorses the spouse’s candidacy.
We conclude that this situation falls squarely within two previous opinions of this Committee, Florida Judicial Ethics Advisory Committee Opinions 06-13 and 07-13. The latter opinion was issued at the behest of a judge whose spouse was running for office but would apply equally to judicial candidates who are not incumbents. These opinions do emphasize the extremely limited role appropriate for the judicial spouse. For example, the advertisements must not imply that the judge actively endorses the spouse’s candidacy, and the judge must not attend campaign functions with the spouse.
In this case, the Committee’s opinion is based upon the fact that the inquiring judge makes clear that the spouse/judge will not in any way be identified as a judge, either by appearing in a robe in the photograph or by having the judge’s name included in the material.
Thursday, June 9, 2016
The Mississippi Supreme Court has reprimanded a former judge
Latisha Nicole Clinkscales served as Municipal Court Judge for the City of Columbus from 2010 until her resignation on June 23, 2015. While serving as a Municipal Court Judge, she also served as the Columbus Drug Court Judge until her resignation on February 6, 2014, following a meeting with the Administrative Office of Courts concerning irregularities in her operation of the Drug Court program.
Clinkscales admitted that, while serving as Municipal Court Judge for the City of Columbus and Judge for the Columbus Drug Court, she made the following statement on social media: “Cast your vote in the Senate District 16 Special Election. I will be voting for Angela Turner Lairy! . . . Let’s not lose this seat!” Clinkscales admitted that this statement violated Canon 5(A)(1) of the Code of Judicial Conduct, which generally prohibits judges from publically endorsing political candidates.
As drug court judge
While serving as a drug court judge, Clinkscales ordered some individuals to enter the drug court program who had not volunteered. During Clinkscales’s tenure as a drug court judge, some drug court participants remained in the program longer than the law allowed. Additionally, Clinkscales ordered her nephew to enter the drug court program, in violation of constitutional and statutory law.
On June 23, 2009, prior to her tenure as a judge, Clinkscales was arrested and charged with failing to obey a police officer. In February of 2011, while serving as a judge, she gave an interview to a local newspaper in which she admittedly gave misleading and deceptive responses to questions about her arrest. Specifically, Clinkscales told the interviewer that she had not broken any laws and that she expected to be cleared of any charges. After giving the interview, she entered a plea of no contest to the charge of disobeying a police officer.
Clinkscales admitted to the Commission’s allegations that she routinely started court late and acted in a manner which could be construed as discourteous and exhibiting poor courtroom demeanor.
After an independent review of the record, and considering the above factors and the findings of the Commission, we find that Clinkscales committed judicial misconduct and conduct prejudicial to the administration of justice, and we find that a public reprimand and assessment of costs are appropriate sanctions. Clinkscales admittedly committed several acts of misconduct which brought the judicial office into disrepute. On the other hand, she has no disciplinary history and fully cooperated with the Commission’s investigation of this matter. There is no evidence that Clinkscales committed any of the above conduct with the intent of depriving the public of assets or exploiting her position for personal gain. And finally, this Court generally seeks “principled consistency with other like cases” in imposing sanctions against judges and attorneys... Imposing a public reprimand and assessment of costs in the instant case is consistent with the sanctions imposed by this Court for similar misconduct in previous cases.
Tuesday, May 31, 2016
The Tennessee Board of Judicial Conduct reprimanded a juvenile court judge who made inappropriate remarks when faced with a valid transfer petition.
The judge referred to the litigant and/or his attorney as a "sneaky snake" who was "conniving" and engaged in a "ploy." The judge had a transcript of these remarks prepared and transmitted as part of the record in order to show her "demonstrated anger and animus toward that party and his counsel." (Mike Frisch)
Saturday, May 28, 2016
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.
Wednesday, May 25, 2016
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?
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 hearingâ€¦ This Section does not apply to proceedings in which the judge is a litigant in a personal capacity.
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).
Tuesday, May 24, 2016
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.
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.
Friday, May 20, 2016
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 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.
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 Â 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.
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.
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.
Wednesday, April 27, 2016
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.
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.