Thursday, January 21, 2016
A post from sunEthics
Judge presided over a criminal case in which the defendant was a City of Sweetwater police officer charged with official misconduct. The State filed a motion to disqualify Judge, citing these grounds: “(1) the trial judge’s acknowledged previous attorney-client relationship with the City of Sweetwater Police Department, which appeared as a third party duces tecum witness before the trial judge on a show cause order why it should not be held in contempt for its failure to comply with a subpoena duces tecum for production of documents; (2) the trial judge’s acknowledged personal and extra-judicial knowledge regarding facts asserted during that discovery dispute; and (3) the trial judge’s acknowledged previous attorney-client relationship with the defendant, who he represented in another case.”
Judge denied the motion as untimely. The State petitioned the Third DCA for a writ of prohibition. The appellate court denied the petition. “While these allegations give rise to an objectively reasonable fear of bias or prejudice requiring disqualification of the trial judge, we are compelled to deny the petition for writ of prohibition because the motion to disqualify the trial judge was not timely filed.” The court went on to indicate that Judge should step aside voluntarily: “Although we have denied the petition, we note that rule 2.330(i) permits a judge to enter an order of disqualification on his own initiative.” State v. Oliu, __ So.3d __ (Fla. 3d DCA, No. 3D15-2426, 1/6/2016), 2016 WL 63662.
Monday, January 18, 2016
A complaint filed against a family court judge by the Michigan Judicial Tenure Commission alleges, to put it charitable, rather rough treatment of children subject to a joint custody order.
The judge's bad day has drawn widespread attention, reflected in this post from the Oakland Press News
Reaction was split this week at The Oakland Press’ Facebook page regarding a complaint being authorized against an Oakland County Circuit Judge.
The Michigan Judicial Tenure Commission authorized the formal complaint on Monday against Judge Lisa Gorcyca, who has been at the center of controversy in a custody case involving a Bloomfield Hills couple.
Gorcyca is accused of misrepresenting the law and lying to the commission in a response to a letter. She is required to file a formal response to the complaint within 14 days of being served.
The custody case, involving Omer and Maya Tsimhoni, gained national interest last summer after Gorcyca ordered the children taken to Oakland County Children’s Village for refusing to speak with their father.
“I hope you will do your job when it comes to investigating the laws this judge broke,” wrote reader Marie Garcia, directing her comment toward the commission.
“Citizens are not allowed to break the law, or they pay (the) consequences. Judges should be even more ethical. Please remove her from the bench before she hurts any more children.”
Travis LaFalce said Gorcyca might be better suited on a TV production.
“If she wants to be unethical and a witch, then she should be on the set of Judge Judy,” he wrote.
“Her kind of power trip has no place in a real courtroom. Everyone needs to remember that this woman is up for re-election next year, and we all need to vote her out of office.”
Others were supportive of Gorcyca.
“Finding Judge Gorcyca guilty of any wrongdoing in this case would be a shame,” wrote Laura Baldwin.
“The last person the children need to be with is their seemingly very unstable mother. I’m praying that the justice system doesn’t take a giant step backward because of a bunch of looney abusive ‘mothers.’ To send the children back into such a toxic atmosphere would be a travesty.”
Aaron John Wilson said Gorcyca came down hard on his ex-wife during divorce proceedings because she did not answer clearly.
“I may be a little biased, but I think that kind of straight forward approach is respectable and appreciated,” he wrote.
The process could be a lengthy one, according to the explanation of the public disposition of grievances listed on the commission’s website.
After Gorcyca responds to the charges, a hearing will be scheduled. The commission has requested for the Michigan Supreme Court to appoint a master (an active or retired judge) to hear the case, take evidence and report to the commission.
After the master files a report, Gorcyca would be able to file objections and to brief issues to the commission. An opportunity for oral arguments is presented prior to a decision by the commission.
The commission has no authority to discipline a judge. It can either dismiss the matter if there is insufficient evidence or recommend that the Supreme Court censure, suspend, retire or remove a judge from office.
If the commission recommends action, a record is filed in the Supreme Court within 21 days. Within 28 days of receiving a copy of that record, the judge can petition the Supreme Court to modify or reject the recommendation. The commission must respond within 21 days.
The matter is placed on the Supreme Court calendar and both the judge and the commission can present oral arguments. After reviewing the record, the Supreme Court issues an opinion and judgment. The judge is allowed to file a motion for rehearing in the Supreme Court unless the court directs otherwise in its opinion.
Brian Dickerson of the Detroit Free Press had commentary.
Like most of those who witnessed it live, I winced when I read the transcript of the June 24 hearing, in which the judge compared the children -- then ages 9, 10 and 13 -- to mass murderer Charles Manson's cult followers and insinuated they could be forced to spend the rest of their childhoods at Children's Village, which is both a detention facility and a way station for children in crisis.
But a review of the 5 1/2-year record of the underlying divorce and custody case led me to conclude that Gorcyca had merely suffered an unseemly meltdown in the course of a long, frustrating campaign to maintain the children's emotional ties to both parents.
In the social media firestorm that erupted after the children's mother took her story to a local TV station, Gorcyca hastily vacated her contempt judgment against the children and ordered them transferred to a summer camp in Ortonville.
But the hearing attracted the attention of the Judicial Tenure Commission, which issued a complaint late Monday ordering Gorcyca to respond the commission staff's allegations that her behavior in the June 24 hearing violated the state's Code of Judicial Conduct. The commission's investigators specifically accused Gorcyca of ridiculing the divorcing couple's children in court, exaggerating the legal punishment she could impose for their continued failure to engage with their father, and generally scaring the stuffing out of them.
The complaint alleges that Gorcyca had a sheriff's deputy handcuff the children in open court and laughed at them even as the youngest wept and trembled with fear.
Unfortunately for Gorcyca, all this took place an Oakland County courtroom where video cameras capture every word and gesture of the participants in any legal proceeding.
Friday, January 15, 2016
A Michigan District Court judge was censured and suspended without pay for 30 days late last year by order of the Michigan Supreme Court.
After he had handled a domestic violence matter, the following took place with the defendant
In December of 2014, after seeing [the defendant] in the hallway of the courthouse, Respondent received a Christmas card from her, wishing him a [M]erry Christmas and thanking him for being “an extremely firm yet fair judge.”
Respondent wrote back to [the defendant], on court stationery, indicating that he was also pleased to have run into her in the hall at the courthouse. In that same handwritten note, he said,
“You continue to sound well. No need to thank me. Well, maybe you can.
“I am not sure of your marital status. But if you are not, would you be interested in seeing me? Being on probation is a complication. I am interested if you are.”
They exchanged emails through January 2015.
He interceded in a separate matter on behalf of a friend's daughter.
Michigan Live had details here, (Mike Frisch)
Wednesday, January 13, 2016
The South Carolina Advisory Committee on Standards of Judicial Conduct has opined that a judge and his attorney son may host a reception at the State Bar convention
...the reception planned by the inquiring judge is a purely a social event, to be hosted by the judge, and the judge’s attorney son. All judges attending the State Bar convention will be invited, so there is no appearance of partiality on behalf of the judge. Therefore, the judge is permitted to co-host, with his attorney son, a reception for other judges attending the State Bar convention.
Canon 2 (A) of the Code of Judicial Conduct requires that a judge conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. However, a judge should not become isolated from the society in which he lives. Commentary, Canon 4 (A). In Opinion 32-1994, this Committee addressed this issue, stating: "[j]udges cannot be expected to sever all ties with society, including attending social occasions."
In Opinion No. 17-1995, this Committee stated that a judge is permitted to give a reception to thank friends in the community for allowing him to serve them as an elected official. Likewise, in 10-1997, the Committee found that a judge could host a reception for city employees and elected officials to express his appreciation. In Opinion 07-2003, we found that a family court judge could host a reception for attorneys in the judicial circuit in which the judge presides, in order to allow local lawyers and court personnel to meet on a non-work-related basis for the sake of fellowship.
Tuesday, January 12, 2016
The Tennessee Board of Judicial Conduct has publicly reprimanded a General Sessions Court judge who had
disposed of numerous cases which came before [him]...in which criminal and juvenile defendants were represented by his spouse, who is an attorney practicing in Montgomery County, Tennessee.
The judge cooperated with the inquiry and now understands that he cannot preside over his wife's matters even if they are uncontested.
The conduct apparently became a public issue when the spouse sought a judgeship.
Local attorney Sharon Massey Grimes uses her married name as chairwoman of the Montgomery County Republican Party and as chairwoman of the Clarksville Academy Board of Directors.
However, she uses only “Sharon Massey” in her application for a new Circuit Court judgeship and when she brings cases before her husband, General Sessions Judge Ray Grimes.
“When we got married, I had two small children and they had the last name Massey,” she said in an interview with The Leaf-Chronicle. “I went to law school and my last name was Massey, my law license is in Massey. It’s not to keep anything secret, but, you know, we have relatives who are lawyers, and most of the time, I didn’t want to confuse the other lawyers with myself.”
Judge Grimes, who also was part of the interview, added: “That was the deal on the front end. She made that decision before we got married. That was kind of a condition of us proceeding forward.”
Massey is among nine applicants to be interviewed this week for a new 19th Judicial District Circuit Court judgeship, which the state Legislature approved earlier this year because of the district’s growing population and expanding caseload. The judicial district includes Montgomery and Robertson counties.
The Governor's Council for Judicial Appointments will meet Tuesday at the William O. Beach Civic Center in Veterans Plaza to consider the nine applicants.
If Massey is appointed, the husband/wife team would occupy two of the soon-to-be 10 judicial positions in Montgomery County.
But this wouldn’t be the first time they have worked together.
85 Massey cases brought to Grimes
The Leaf-Chronicle reviewed the candidates’ applications and subsequently found that since 2008, Massey has brought cases for at least 85 clients before Judge Grimes, her husband.
According to the state Supreme Court’s Code of Judicial Conduct, “A judge shall uphold and promote the independence, integrity and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.”
The rules state in part: “A judge shall disqualify himself or herself in any proceeding in which the judge’ impartiality might be reasonably questioned, … (if) the judge know(s) that the judge, the judge’s spouse or domestic partner, or a person within the third degree of relationship to either of them, or the spouse or domestic partner of such a person is: … acting as a lawyer in the proceeding.”
Massey, when questioned about her activities before the local court, said: “Never in the 16 years we’ve been married, have I ever tried a case in front of him. He has never made a decision on one of my cases.”
She and Grimes say all of the 85 cases were settlements or plea bargains that were reached outside of court, and Massey brought them to her husband to sign off on, a formality of the process.
“In 16 years, nobody’s ever complained,” Grimes said. “And I certainly wouldn’t do anything improper. The cases that are brought before me, that she brings, are brought by (an assistant) District Attorney, and generally, he’s there or has an indication that the police officer is there.”
A closer look at the 85 criminal cases in General Sessions Court where Massey is listed as the defense attorney and Grimes the judge shows a total of 117 offenses. Some clients had multiple charges and some returned during the seven-year period with new charges.
Of the 117 charges for Massey’s clients, Grimes signed dismissal agreements or granted judicial diversions on 62 of the charges.
A total of 23 charges were reduced to lesser offenses, with 21 of those being DUI charges reduced to reckless driving, and, in one instance, to public intoxication.
Nine of Massey’s clients, however, chose to enter guilty pleas to their full charges, and 13 were ruled guilty of their original charges.
A total of 10 charges were sent, or bound over, to a grand jury for a determination of whether the case should continue to Circuit Court. In each instance, the client waived the right to a preliminary hearing.
“Those decisions are made before we ever walk into that courtroom,” Massey said. “And he’s not making a decision; it’s an agreement between the defense and the prosecution.”
Grimes added that he is unable by rules of the court to change the agreements.
The Leaf-Chronicle’s review did not include juvenile cases of Massey’s clients that may have gone before Grimes. Juvenile records are not open to the public, and such cases would generally involve child custody matters, but offenses such as truancy and juvenile delinquency also are heard in Juvenile Court.
“His juvenile court, I rarely have any of those cases, ever,” she said. “His juvenile cases usually consist of truancy and custody, and all of my cases are either in Judge (Tim) Barnes’, Judge (Wayne) Shelton’s or Judge (Ken) Goble’s (court).
DA: ‘It shouldn’t be done’
District Attorney General John Carney said in an interview on Friday he was aware that Grimes has handled cases where his wife was the attorney.
“I didn’t realize there was that many of them,” Carney said, when asked about the case files. “Over the last several years, those kinds of cases were brought to our attention.”
He said the normal practice is to have a DA and a judge come in from a nearby jurisdiction to hear a case at trial if there is a conflict.
But what about a judge signing off on the prearranged settlements his attorney wife brings to the court?
“It shouldn’t be done,” Carney said with a pause. “I’m thinking in my mind how they could justify that. To me, it doesn’t make any difference. There is no difference, other than it probably looks worse, if you think about it.”
He said sometimes attorneys and police officers will “work around” the assistant DA to reach an agreement with the people involved.
“We try to look at every one of them,” he said of case settlements.
Carney added that he “guaranteed” that each of the DUI cases reduced to lesser charges had been reviewed by an assistant district attorney.
Further, he said, forms are now used to spell out terms of an agreement, which is signed by an assistant DA and presented to the judge. Thus, DAs and police officers do not have to be in the courtroom to indicate to the judge that an agreement is acceptable.
“I think it boils down to one question, does it appear improper for a spouse to practice law in her husband’s courtroom?” Carney said. “I would say that it’s not proper for the sole reason that it can be an appearance of impropriety. (But) it may not be. And there may not be anything wrong with (Grimes signing) the settlements.”
Carney said he needed to know more about each situation, and he planned to look into the matter more closely.
“I don’t know how it got to where it is, but we would definitely have some oversight to that,” he said. “And it would be our responsibility (to prohibit impropriety).”
“It might be a legal question that we might want to ask the Board of (Professional) Responsibility. Does it not say ... they should excuse themselves without any of us (DAs) having to ask that (ethical) question – then, that would be an automatic (solution),” Carney said. “The thing that would really resolve it is to cut out all of her taking cases that are criminal into his courtroom. That might be something that we want to do. I mean, that’s the only check and balance I see here.”
After Friday’s interview, Carney contacted the reporter to say he had spoken briefly with one assistant DA who assured him that “any cases of (Sharon Massey’s) that are going to have hearings, will be moved out of Judge Grimes’ court, usually to Judge Goble.”
Carney added that the assistant DA told him “extra precautions” are taken in cases involving Massey and Grimes “to be sure nothing gets past us.”
An outside opinion
Memphis Judge Alan Glenn, a Court of Criminal Appeals judge who heads up the Judicial Ethics Committee for the state Supreme Court’s Board of Professional Responsibility, said he could not give a definitive answer about whether Grimes signing off on his wife’s cases is improper without reviewing the cases.
“If these are where the judge is making no fact-finding, but is merely performing the function of signing off on agreements, that’s probably OK,” Glenn said. “It doesn’t happen a lot, but that is not uncommon when you have a situation for one reason or another, a judge, where there could be a conflict, the parties agree that the judge can go ahead and sign off on an agreement.”
He said such practices are more common in civil cases in probate court or in personal injury cases, but more so in Circuit Court than General Sessions.
“If these are guilty pleas where the prosecution and the defense lawyer and the defendant have agreed the disposition of this case shall be whatever it is, a judge has got to approve that. ... And if it’s on a settlement form, that’s OK,” Glenn said. “If the judge is called upon to make any fact-finding on anything that is disputed, that might be a problem.”
He said determining whether the practice creates a perception of being improper would be a judgment call.
“People have argued about what is the appearance of impropriety for years and years,” Glenn said. “That’s really put in as a catch-all. But the winner thinks there’s no impropriety and the loser thinks there is.”
Like Carney, Glenn said he would need more information before offering a definitive answer.
“What I would have to do is sit down and look at the files,” he said. “It may be OK, it may not be. Without the specifics, you just can’t tell. This may be perfectly all right. I don’t know. It may not be.”
The Massey/Grimes situation isn’t the only instance of spouses potentially being on the opposite side of the judge’s bench in the 19th Judicial District.
Last month, Circuit Court Judge John Gasaway’s duties were shifted from handling both criminal and civil cases to hearing only civil cases such as divorces. The change comes in the wake of his wife, attorney Carrie Gasaway, being convicted in May of extortion, sentenced to probation, and forced to give up her law practice for the rest of her life.
Presiding Circuit Judge Larry McMillan, who is chancellor for the district, said the change was part of a reorganization to shift the judges’ workloads with a fifth Circuit Court judge coming on board in September
Judge Gasaway was not mentioned in the case against his wife or during her trial.
Additionally, the wife of General Sessions Judge Ken Goble, Andrea Goble, is a practicing attorney in Clarksville.
Gasaway & Massey
A close look at Massey’s judgeship application indicates she tried to distance herself from a past partnership with Carrie Gasaway.
Massey indicated in her application that between April 2003 and October 2009 she was a partner with Carrie Gasaway, long before Gasaway’s conviction, along with her most recent law partner, Fletcher Long, for extortion.
Massey wrote in her application: “This was a real estate title company known as Gasaway & Massey. (This association dealt only in real estate closings.) This association was terminated by me in October 2009.”
However, an advertisement for Gasaway & Massey in the 2007 Clarksville telephone book indicates the firm handled personal injury, criminal defense, real estate, will/trust/estates, divorce/custody/adoption, and family law mediation.
“I can’t remember why we did it,” Massey said of the advertisement. “I’m not a big fan of the Yellow Pages. I can’t remember, that was so many years ago. I’ve been gone from her since 2009.”
She added later: “I wasn’t trying to minimize anything. That’s an unfortunate situation.”
Massey said she understands the scrutiny of her application and performance.
“I can tell you that at this time before the Judicial Selection Committee comes up, I’m sure there are people who would want to say, ‘Well, she’s a lawyer and he’s the judge.’ But you know, my integrity has never been questioned as far as this goes,” she said.
And Grimes believes his integrity is intact regarding any impression of impropriety.
“You can make that impression if you want,” he said. “I can’t keep someone from making it. All I know is there was no wrongdoing. If there’s no agreement, I will not hear it.”
Massey added: “And I wouldn’t ask him to hear it.”
They say that trying to keep within the rules of the judiciary is nothing new to them.
“We are well aware that we are a married couple, and that we are in the same field, and that I do not try cases in front of him,” Massey said. “I would put my ethics up against anyone.
“My application is far and above anyone else’s. I’m not saying I’m better than any of the other candidates, I’m just saying that I have significant experience. And I’m not going to do anything that is going to jeopardize my career in any way.”
The Leaf-Chronicle also covered the Gasaway matter. (Mike Frisch)
Monday, January 11, 2016
The New York Commission of Judicial Conduct has censured a Supreme Court justice who drove drunk and asserted his judicial status when stopped
On October 17, 2012, respondent drove his car on Interstate 87 from Saratoga Springs to Colonie, New York, after voluntarily consuming a sufficient number of alcoholic beverages to cause him to become legally intoxicated...
Respondent had left Saratoga Springs around 3 :00 PM on that date, after attending a judicial conference. He testified at the hearing that he "drank pretty heavily" the preceding night, and while he did not recall drinking that day, it was "not unlikely" he did so. The night before his arrest, respondent also took Xanax, which he had been prescribed, in an undetermined amount; however, the effect, if any, of this medication on his actions is uncertain and unquantifiable.
When stopped, he was polite but
...respondent at least twice volunteered that he was coming from a judicial conference although Sergeant McGreevy had not asked him where he was coming from or where he had been.
Respondent told Sergeant McGreevy that he wanted to show her his luggage in the trunk of his car in order to prove that he was coming from a judicial conference, and, despite Sergeant McGreevy's request that respondent not open the trunk, he did so.
After respondent was placed under arrest and handcuffed, he said to Sergeant McGreevy, in words or substance, "Is this how you treat a Supreme Court Judge?
During the drive to the State Police Station in Latham, respondent referred to the fact that he was a judge.
At the station house, respondent said, in words or substance, "Is this the way you treat a Supreme Court Justice?" and "Couldn't this just be resolved with a Speeding ticket?" and/or "Couldn't this just be made a Speeding ticket?"
He has been treated for alcoholism.
The commission viewed the driving and assertion of judicial status as serious misconduct.
the record establishes that respondent operated his vehicle while intoxicated, at a high speed (at least 80 miles per hour) and in an unsafe manner, and continued to do so for two more miles while pursued by police, with emergency lights and siren activated, before stopping abruptly. While he was not charged with attempting to flee, his conduct imperiled the lives of others, including other motorists, their passengers and law enforcement personnel.
Thursday, December 31, 2015
We greet 2016 with another case from the dogs.
The New York Commission on Judicial Conduct has admonished another one of the non-attorney town court justices for denying a fair hearing in a matter convened to determine whether a pit bull was a dangerous dog.
In handling a Dangerous Dog case during his first year as a judge, respondent made numerous procedural and substantive errors. Most seriously, he summarily ended the hearing before the attorney for the dog's owner had completed his case, which resulted in a decision made on an abbreviated record that deprived the dog's owner of the right to be heard pursuant to law. After the prosecutor had rested her case, respondent announced his decision that the dog was dangerous and that the case was over. Even if he was confused because a motion to dismiss was made before the defense had concluded, the attorney's repeated objections that he was "in the middle of my case" and wanted to call two additional witnesses should have prompted respondent to recognize that his decision was premature. Instead, he refused to be dissuaded, reiterating, "You were done ... We' re done." It also appears that respondent impermissibly excluded another defense witness from testifying because the witness had been in the courtroom during earlier testimony, although the prosecutor had not requested sequestration and no witness list was provided.
It is a fundamental principle of law that every person with a legal interest in a proceeding - civil or criminal - must be accorded the right to be heard under the law.
Tuesday, December 29, 2015
The Tennessee Board of Judicial Conduct has publicly reprimanded a chancellor for language in an order of dismissal that reflected his views of Obergefell v.Hodges.
The order is quoted in part
Although this Court has some vague familiarity with the governmental theories of democracy, republicanism, socialism, fascism, theocracy, and even despotism, implementation of this apparently new "super-federal-judiciary" form of benign and beneficial government, termed "klepocracy" by some and "judi-idiocracy" by others, with its iron fist and limp wrist, represents quite a challenge for a state level trial court.
The chancellor acknowledged that he "may have made an error" and that the order might be "misunderstood."
He had later vacated the dismissal and granted the divorce. (Mike Frisch )
A non-attorney town court justice has been admonished by the New York Commission on Judicial Conduct for ex parte contacts with two persons charged with trespassing. One defendant also was charged with "hunting deer during muzzle-loader season without a muzzle-loading license."
The stipulation in the case recites some prior issues
Respondent, in his 3 5 years of judicial service (including 8 years serving concurrently in two town courts and 13 years serving concurrently in three town courts), was previously twice admonished for conduct in the Burns Town Court where he has served since 1980. In 2009, Respondent was admonished for failing to timely remit fines and fees to the State Comptroller, report traffic convictions, issue receipts, and use available means to punish defendants who had failed to appear to pay traffic fines. In 20 I 0, Respondent was admonished for failing to immediately disqualify himself in a harassment case despite knowing the parties and having personal knowledge of the underlying events.
While arraigning two defendants charged with ECL violations, respondent listened to a defendant's "version of the story," reviewed a map of the alleged trespass site, identified locations on the map and discussed with the defendants whether they were public or private locations, asked the defendants about the events and listened to their explanations. As a judge for more than three decades, respondent should have recognized that allowing unrepresented defendants to give their "version" of events at an arraignment - for any reason - is strictly prohibited by the ethical rules. With no prosecutor present these were impermissible ex parte communications in violation of Rule 100.3(B)(6). Such communications can influence, or appear to influence, the judge who will be the trier of fact at a bench trial, and thus compromise the judge's impartiality. Moreover, questioning defendants at arraignment about the underlying events, as respondent did here, places the defendant in jeopardy of making incriminating admissions or other statements that might prejudice the defendant's position at trial.
The justice also stipulated that he had delayed the case. (Mike Frisch)
Tuesday, December 22, 2015
The New York Committee on Judicial Conduct accepted the resignation of a town court justice who was alleged to have done the following
Judge Daniels was apprised by the Commission in August 2015 that it was investigating a complaint filed by its Administrator pursuant to Section 44(2) of the Judiciary Law, alleging that in various traffic cases and eviction proceedings, Judge Daniels exhibited impatience and intemperance toward participants, made comments suggesting that he had prejudged the cases, failed to make proper audio recordings of court proceedings as required, engaged in unauthorized ex parte communications and, in one case involving his former attorney, presided without disclosing the relationship to the parties.
As my friend and former colleague Ross T. Dicker has noted, these town court justices are not required to be attorneys.
Ross also likes a good oldie. Here's one that inspires this title. (Mike Frisch)
Saturday, December 19, 2015
A judge who has been foreclosed is not foreclosed from handling foreclosure matters, according to a recent decision of the Florida Judicial Ethics Advisory Committee.
Approximately five years ago, the inquiring judge (and the judge’s spouse) were defendants in two lawsuits to foreclose on two residential mortgages the inquiring judge had taken on the family home. The foreclosure cases were resolved by short sale and the lawsuits were voluntarily dismissed a little less than four years ago.
The inquiring judge has now rotated back into the circuit-civil division where the judge sometimes handles older, and generally contentious, residential foreclosure cases. The judge inquires whether recusal is required from all residential mortgage cases, and, if not, whether disclosure is mandatory or merely prudent.
The inquiring judge is not required to recuse himself for all residential mortgage cases by virtue of having been a defendant years ago in a foreclosure action. Although no Florida Judicial Ethics Advisory Committee Opinion has addressed the specific question raised by the inquiring judge, some prior opinions are instructive...
The inquiring judge is not obligated to disclose the mortgage foreclosure proceedings that occurred nearly four years ago. In cases involving a judge’s personal involvement in litigation, this Committee has only recommended disclosure during the time a judge is involved in the litigation and for a reasonable period thereafter. See Fla. JEAC Op. 12-09 (“While the judge is involved in the foreclosure litigation as a tenant/defendant, and for a reasonable time thereafter, the judge has a duty, in foreclosure proceedings assigned to the judge, to disclose the facts and circumstances of the judge’s own litigation.”); see also Fla. JEAC Op. 02-05 (“[I]f the judge’s personal matter does result in litigation and if attorneys representing the judge or his former spouse appear before the judge, then disclosure or recusal is warranted.”).
Some guidance for determining whether a reasonable period of time has elapsed is found in Florida Judicial Ethics Advisory Committee Opinion 95-16, where the Committee advised that after the passage of a year, it is proper for a judge to hear cases involving a lawyer or law firm that represented the judge in litigation. See Fla. JEAC Op. 01-17 (“This Committee believes that the inquiring judge should make a disclosure of the prior relationship for a reasonable period of time following the conclusion of the law firm’s representation. This disclosure of information is not an admission of bias but is necessary to enable a party to make an informed decision as to whether or not to seek disqualification. A reasonable period of time has previously been suggested by this Committee to be from several months to one year, depending upon the unique facts and circumstances of the representation.”)...
...the inquiring judge need not recuse from all mortgage foreclosure cases, nor from all cases involving the same lawyers, lenders, or assignees involved in the judge’s residential foreclosure. Nor does the judge need to disclose the mortgage foreclosures filed against the judge’s personal residence. However, if the same lawyers, lenders, or assignees appear before the judge, the judge should disclose the prior litigation until such time as no reasonable person would find the disclosure relevant to a determination of whether the judge’s impartiality might reasonably be questioned.
Thursday, December 17, 2015
DCist has a breaking story
A Montgomery County District Court Commissioner was charged with visual surveillance with prurient intent and misconduct in office after filming an up-skirt video of a colleague NBC Washington reports.
The man in question is Israel N. Mangroo of Germantown, Maryland. He was employed at the Montgomery County Detention Center’s Central Processing Unit when the incident took place, though he has since been fired. The victim is also an employee of the CPU.
The incident occurred on November 21, and Magroo was arrested November 24. According to a charging document obtained by NBC Washington, prosecutors said:
Mangroo allegedly asked the victim to go to his office to clarify something he'd seen on his computer. When she leaned over to look at the monitor, Mangroo moved his cellphone under her skirt…. The victim saw a flash or shutter movement from the camera phone, she told authorities. She said Mangroo then allegedly pulled the cellphone out from under her skirt, turned it off and quickly put it into his pocket, and told her that he had a rip in his jacket.
The document also stated that Mangroo initially denied taking a photo, “but later admitted taking a video."
His trial is set for January 28.
The judge who duked it out with a public defender has been ordered removed from office by the Florida Supreme Court.
The Hearing Panel heard this matter on March 30 and March 31, 2015. A portion of the courtroom video from the incident was played for the Hearing Panel. The video showed Judge Murphy’s verbal altercation with assistant public defender Andrew Weinstock after Mr. Weinstock refused to waive speedy trial for his client. Judge Murphy stated, "You know if I had a rock, I would throw it at your [sic] right now. Stop pissing me off. Just sit down." When Weinstock refused to sit down, asserting his right to stand and represent his clients, Judge Murphy responded, shouting: "I said sit down. If you want to fight, let’s go out back and I’ll just beat your ass." The two men left the courtroom and met in the hall.
Focusing first on the effects on the public’s trust in the judiciary, we must conclude that Judge Murphy is not presently fit to serve. Judge Murphy used profanity in an open courtroom and threatened violence against an attorney appearing before him. This is the sort of egregious conduct that erodes the public’s confidence. It is without question that except for the June 2, 2014, incident, Judge Murphy has been a good judge. Notwithstanding his prior judicial performance, Judge Murphy’s total lack of self-control became a national spectacle—an embarrassment not only to the judge himself but also to Florida’s judicial system. Given the clear erosion of public confidence in the judiciary caused by his misconduct, removal is an appropriate sanction.
As to the likelihood of future misconduct, it is unclear whether Judge Murphy is likely to have another similar outburst. Although he immediately sought treatment and an underlying cause for his misconduct, this Court has found removal appropriate even where a judge takes steps to address mental health. See Sloop, 946 So. 2d at 1056; Garrett, 613 So. 2d at 464. We must also take note that Judge Murphy ultimately discovered an underlying cause of his misconduct: PTSD.
As to his PTSD
The severity of Judge Murphy’s behavior and the VA finding leave open the possibility of future misconduct. Based on the clear erosion of public faith in our court system caused by Judge Murphy’s misconduct and the unmistakable possibility that he could have a similar outburst in the future, we must find that Judge Murphy is presently unfit to serve.
Friday, December 11, 2015
A New York town court justice has resigned from office as a result of misconduct as a judge.
According to a stipulation with the Commission on Judicial Conduct
Judge Becker was apprised by the Commission in August 2015 that it was investigating a complaint that she telephoned a Tompkins County Assistant District Attorney, misrepresented herself as her daughter in a voicemail message left on the Assistant District Attorney's phone line, and requested that criminal charges in People v Jeffrey J Goldrick, in which her daughter was the complaining witness, be upgraded from harassment in the second degree to assault in the third degree.
She agreed to not accept a judicial office in the future.
Details here from the Ithaca Journal.
Newfield Town Court Justice Linda Becker is stepping down amid misconduct allegations.
The New York State Commission on Judicial Conduct was investigating a complaint that Becker, whose daughter was the complaining witness in a criminal case, called a Tompkins County assistant district attorney, misrepresented herself as her daughter in a voicemail left on the ADA's phone, and requested that criminal charges in the case be upgraded from second-degree harassment to third-degree assault, according to the stipulation.
Becker, who is not an attorney, has served as a justice of Newfield since Jan. 1 and received a salary of $10,000, according to the commission. Before being elected Nov. 4, 2014, Becker was a clerk for eight years in the Newfield Town Court.
At the time of the incident, Becker said she was not thinking clearly and she was acting as a mother.
Becker said the call to the ADA was made 10 days after she was elected as judge, which was prior to training and before she was acting as a judge.
Wednesday, December 2, 2015
From the web page of the Tennessee Supreme Court
The Tennessee Supreme Court has amended the provisions of the Code of Judicial Conduct regarding judges and judicial candidates’ election campaign conduct.
The recent changes stem from suggestions made by a joint committee of the Tennessee Judicial Conference and the Tennessee Trial Judges Association, which presented to Chief Justice Sharon Lee its “Report to the Tennessee Judicial Conference on Revisions to the Tennessee Code of Judicial Conduct.”
The Supreme Court made significant revisions to the Code of Judicial Conduct in 2012. The findings in the judges’ report were based on their experience since the revised Code was adopted. Although the report recommended a number of amendments, the Supreme Court did not adopt all of the proposed changes. The Supreme Court thanked the members of the joint committee for their work and expressed its appreciation for the committee’s thoughtful presentation of the issues raised.
The Code of Judicial Conduct continues to impose significant limitations on political activities by judges and judicial candidates. Under the amended Code, judges and judicial candidates are now permitted to:
- Endorse or oppose judges or judicial candidates in a partisan, nonpartisan, or retention election for judicial office.
- Speak on behalf of his or her candidacy through any medium, including but not limited to advertisements, websites, or other campaign literature.
- Seek, accept, or use endorsements from any person or organization.
- Publicly endorse or oppose judges or judicial candidates in a partisan, nonpartisan, or retention election for any judicial office.
- Group themselves into slates or other alliances to conduct their campaigns more effectively, including by establishing joint campaign committees.
- Solicit funds for a political organization or candidate for public office, only from a member of the judge’s family or a member of the judicial candidate’s family.
- Begin some campaign activities up to one year prior to the election.
See the details in the order here.
Tuesday, November 24, 2015
It has been a quiet few months for the venerable Florida Judicial Ethics Advisory Committee.
Opinion Number: 2015-12
Date of Issue: November 3, 2015
May a judge assume the position of officer of an organization, with the view that the judge would move up the officer ranks to the presidency, where the organization’s stated purpose is to benefit the families of law enforcement officers and firefighters in circumstances where the officers and firefighters lost their lives in the line of duty?
The inquiring judge wants to know whether the inquiring judge can accept this leadership position. This discussion starts with the consideration of the Florida Code of Judicial Conduct, Canon 2A, which instructs that judges must avoid all appearances of impropriety. “The test for appearance of impropriety is whether the conduct would create in reasonable minds, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired.” Commentary to Canon 2A.
Previously this Committee found in Florida Judicial Ethics Advisory Committee Opinion 94-15 that it would be improper for an inquiring judge to be on the Board of Directors of the Police Officers Assistant Trust. “A majority of our members, however, feel that the title of the organization would identify it to be a prosecution oriented group and for a judge to be a member would be in conflict with the neutrality required of judges.”
This Committee found in Florida Judicial Ethics Advisory Committee Opinion 00-04 that a hearing officer would violate the Code of Judicial Conduct by raising an appearance of impropriety, if the hearing officer attended a local police department’s Citizens Police Academy. Although the facts differ in this matter with Opinion 00-04, the underlying rationale is instructive.
The Committee found that the “prolonged, familiar contact” that was part of the Citizens Police Academy “may create a reasonable perception that casts doubt on the hearing officer’s impartiality, interfere with his/her duties, and detract from the dignity” of the office. If the inquiring judge became an officer of the organization with the view of moving up the ranks, that could also create a reasonable perception that could cast doubt on the impartiality of the inquiring judge.
Therefore, the Committee believes the inquiring judge should not accept this officer position with this organization.
Additionally, although not asked by the inquiring judge, the Committee has insufficient information to say whether the inquiring judge’s membership in this organization is permissible or not. We cannot take a position on membership in this organization by the inquiring judge, without more information regarding the particulars of this organization.
Tuesday, November 17, 2015
Samuel Levine of Touro Law Center has announced that the winners have been selected for the sixth annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility. The Prize will be awarded to Elizabeth Chamblee Burch, for her article Judging Multidistrict Litigation, 90 NYU L. Rev. 71 (2015), and Morris A. Ratner, for Class Counsel as Litigation Funders, 28 Geo. J. Legal Ethics 271 (2015). The Prize will be awarded at the AALS Annual Meeting in New York in January. Congrats! (Alan Childress)
Tuesday, November 10, 2015
The North Carolina Supreme Court publicly reprimanded a general court of justice judge for inappropriate behavior in a divorce case by
exhibiting a failure to remain patient, dignified, and courteous to the parties appearing before him; making inappropriate comments to the parties before him; misstating the law when threatening future contempt proceedings; improperly exercising his contempt powers thereby denying multiple parties their fundamental rights of due process; and failing to maintain order and decorum in the proceedings before him.
Respondent presided over a contentious multi-day custody hearing in Morrison v. Morrison, which concluded on 7 August 2014[.] Durham County routinely records each of its domestic court sessions with audio and visual equipment. The recording in Durham County File No. 14-CVD-47 shows, after hearing all the evidence and before announcing a decision, Respondent[ ]was not patient, dignified, nor courteous with the parties before him. In a raised voice and sharp tone, Respondent proceeded to lecture both Mr. and Mrs. Morrison. During this soliloquy, Respondent made several inappropriate comments including repeatedly and loudly chastising the parties that they were acting like idiots. Respondent admitted during his 22 December 2014 interview with Commission staff, that he “said all of those things.”
At a later proceeding he threatened contempt
“And I better not hear either of you saying anything negative about the other party or y’all gonna get a little trip to the Durham County Bed and Breakfast for contempt of court. And there is no appeal, you stay until I say you get out.”
That was a reference to the jail.
The effects from Respondent's misconduct in this matter have been exacerbated by the video footage capturing the events of this hearing. Because Respondent's comments and Ms. Morrison's outburst were captured on video, this incident was highly publicized with media coverage both locally and nationwide. In addition to the facts as set forth in this Stipulation, Respondent agrees the Durham County court video recording of this matter will also be included in the evidentiary record for these Judicial Standards inquiries.
For the above reason, video of judicial behavior may have the value of body cams for police. (Mike Frisch)
Wednesday, October 21, 2015
The New York Commission on Judicial Conduct accepted the resignation of a Yonkers City Court judge who had been served with a complaint alleging misconduct.
The stipulation recites that he was charged with contacting third parties and using his judicial title in connection with his daughter's divorce.
He also charged double the prescribed rate for officiating at marriages. (Mike Frisch)
Monday, October 19, 2015
The New York Commission on Judicial Conduct entered into a stipulation accepting the resignation of an elected Supreme Court Justice who had improperly approved guardianship payments to her "confidential law clerk" that were pending before other judges of the court.
the Commission, on its own motion, authorized a second investigation based on a report of the Inspector General for the Unified Court System, alleging inter alia that Judge Lewis failed to adequately oversee and review Ms. Detherage's work as a guardian, and improperly continued to preside over three of Ms. Detherage's matters and approved a guardianship payment to her after hiring her as her full-time law clerk.
The investigation was initiated based on news reports concerning the judge's conduct.
The decision and order are linked here.
The New York Times covered the story. (Mike Frisch)