Friday, April 6, 2018

Where Brevity Is The Soul Of Injustice

The Kansas Supreme Court published its conclusions of misconduct by a former judge

Respondent left the bench in the spring of 2017. But the primary misconduct occurred on September 7, 2016, while she was a judge. Accordingly, this court has jurisdiction over this matter.

The matter that led to discipline is reflected by a full hearing transcript

'THE COURT: Court will call 10TR604 State of Kansas v. Brandi Lee Heather. Are you Brandi Heather?

'THE DEFENDANT: Yes.

'THE COURT: Show Mr. Andrews for the State. Defendant appears in person, in custody, pro se.

'There's a motion to revoke your probation for failure to comply on file for various reasons. I find that sufficient. I revoke your probation and remand you to the custody of the Sheriff's Office to serve the balance of your sentence.

'We're adjourned. Parties may withdraw.'

The judge failed to participate in the ensuing misconduct proceedings.

She also failed to appear for the oral argument, which is linked here. (Mike Frisch)

April 6, 2018 in Judicial Ethics and the Courts | Permalink | Comments (0)

Friday, March 30, 2018

The Fix

A ticket-fixing former judge was reciprocally suspended by the New York Appellate Division for the First Judicial Department based on a New Jersey sanction

Respondent was suspended for three months in New Jersey based upon misconduct committed while he was a part-time Municipal Court Judge in Jersey City (2004-2007) during which time he submitted parking and traffic tickets issued to him and members of his family to his judicial colleagues for improper adjudication.

Respondent stipulated to facts relating to his involvement in ticket fixing. In 2005, respondent received a ticket for debris left at his law office in Jersey City. Respondent knew that he could not dismiss or adjudicate his own ticket so he brought it to his supervising judge. Respondent represented to New Jersey disciplinary authorities that the perception in the Jersey City Municipal Court was that you could not dismiss your own ticket but you could give it to another judge. The Judge adjudicated the ticket in chambers and respondent paid a $50 fine and $20 court costs. Respondent considered this adjudication to be a "test run" and assumed that other tickets could be handled in similar fashion.

Respondent also presented parking tickets issued to him and his wife to his colleague (who shared law office space with respondent, did per diem work for him for which they were paid, and was listed as "of counsel"). The colleague adjudicated the matters, finding respondent and his wife guilty, waiving the $42 fine for both tickets, and imposing $30 in court costs notwithstanding that neither respondent nor his wife formally appeared in court, nor had they pled guilty by mail as provided for in the court rules. The $30 in assessed costs was paid to the court.

Respondent also submitted a traffic ticket issued to his son in 2004 for failure to observe a traffic control device, a moving violation, to this same colleague who amended the ticket to delaying traffic, a no-point violation, and imposed a $25 fine and $25 in court costs. Respondent's son was found guilty of the amended offense notwithstanding he never formally appeared in the courtroom, but was standing outside in the hallway, and did not enter a guilty plea in a manner prescribed by the court rules. Further, no factual basis for the amended charge was placed on the record and neither the municipal prosecutor nor the police officer who issued the ticket were given notice or opportunity to be heard on the matter. The $50 fine was paid to the court.

In 2007, in response to rumors of improper ticket handling respondent asked an administrative clerk about vacating the tickets adjudicated. Respondent asserted that he was prepared to pay the maximum fine for each of the tickets but the clerk informed him that a ticket could not be vacated once it was entered "in the system." At or around this time, respondent and others became the subjects of investigations conducted by the court system and the New Jersey Attorney General's Office.

On October 3, 2007, respondent voluntarily took an unpaid leave of absence from his judicial position. Thereafter, on or about October 7, 2007, respondent was criminally charged with official misconduct in violation of New Jersey Statutes Annotated 2C:30-2(a). On August 28, 2009, the court granted respondent's application for admission to New Jersey's Pre-Trial Intervention (PTI) program for a period of two years as a condition of which he admitted to his mishandling the traffic tickets at issue and agreed never to hold judicial office again in the future. Respondent successfully completed the PTI program and the charge against him was dismissed.

In 2014, the New Jersey Office of Attorney Ethics (OAE) filed a formal disciplinary complaint against respondent charging him with violations of New Jersey Rules of Professional Conduct (NJRPC) 8.4(b) (commission of a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, specifically, official misconduct [*3]under NJ Stat Ann 2C:30-2[a]) and NJRPC 8.4(d) (conduct that is prejudicial to the administration of justice). Respondent, represented by counsel, admitted the material facts alleged by the OAE and admitted the NJRPC 8.4(d) charge.

In July 2015, following a hearing on the NJRPC 8.4(b) charge and appropriate sanction to impose, a District Ethics Committee (DEC) issued a report in which it sustained both of the alleged disciplinary violations and recommended respondent be suspended for three months, one month of which should be suspended.

Mitigation

In mitigation, the DEC considered respondent's past accomplishments (which included his prior career as a Roman Catholic priest), his pro bono and civic work for the Filipino community, his character evidence, the fact that seven years had passed since respondent was first served with the OAE's grievance against him, he cooperated with law enforcement and the OAE, he had no prior disciplinary history, and his sincere remorse.

Sanction

Here, the New Jersey Supreme Court imposed a three-month suspension which is in general accord with New York precedent involving arguably similar misconduct .

(Mike Frisch)

March 30, 2018 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, March 27, 2018

A Fair If Imperfect Proceeding

The Maryland Court of Appeals has held that a sitting judge reprimanded by the state commission received a fair, although not perfect, hearing with adequate due process

We must decide whether proceedings before the Maryland Commission on Judicial Disabilities (“Commission”) violated a judge’s due process rights. As we explained last year, although we have no appellate jurisdiction to review a judge’s exceptions to the Commission’s determination to issue a public reprimand after public charges and a contested hearing, the common law writ of mandamus provides an avenue for a judge to challenge the fundamental fairness of the proceedings before the Commission. Matter of White, 451 Md. 630, 649–50 (2017) (per curiam) [hereinafter White I]. We previously refrained from deciding the due process claims made by Petitioner, Judge Pamela J. White, because we did not have the full record of the Commission proceedings before us. Id. at 652–53. After review of the complete record, we hold that, although the Commission violated applicable Maryland Rules, these violations did not ultimately deprive Judge White of a fundamentally fair proceeding...

“An accused judge is entitled to a fair proceeding, but not necessarily a perfect proceeding.” White I, 451 Md. at 648. As we have detailed, the proceeding before the Commission certainly was not perfect—several mistakes were made. But in this mandamus proceeding, we look only to whether Judge White received the fundamental due process protections under the Maryland Constitution and our Rules, namely “notice, an opportunity to respond, [and] a fair hearing . . . .” Id. Our careful scrutiny of the record convinces us that she did.

The court noted that the issuance of a reprimand was within the powers of the commission over which it did not exercise appellate review.

The judge had raised objections regarding procedures both in the investigatory and adjudicative process

Certainly, judges facing disciplinary proceedings are entitled to notice of the charges against them. Cf. Attorney Grievance Comm’n v. Seiden, 373 Md. 409, 416–21 (2003). A judge’s due process rights are violated, for example, when discipline is based on a rule violation that was not charged. Id.; see also In re Ruffalo, 390 U.S. 544, 550–51 (1968) (attorney discipline charges “must be known before the proceedings commence. . . . [and] become a trap when, after they are underway, the charges are amended on the basis of testimony of the accused.”).

Here though, Judge White was charged with violating MCJC 1.2, and her conduct at the hearings on May 5, 2014 was identified as a basis for the charges. Unlike the respondents in Seiden and Ruffalo, who were not charged with the rule violations they were ultimately found to have committed, Judge White knew that her conduct at this hearing was part of the complaint and would be considered by the Commission. She had notice of the charged misconduct attributed to her behavior at the May 5, 2014 hearing and the Commission’s sanction did not exceed the charges.

Our earlier coverage is linked here.

The judicial complaint involved a judge-lawyer interaction in a civil case that had led to the judge's recusal.

The judge stated

[B]ecause I am incredulous, because I am in disbelief, because I find myself incapable of believing virtually anything that Mr. Jones has just told me, I’m in the unfamiliar territory of finding that I must recuse myself from any further proceedings in this case because I cannot believe anything that the Reverend Rickey Nelson Jones Esquire – I’m reading off the letterhead – tells me. I think that 99% of what Mr. Jones has told me about his conduct on behalf of his client is pure bullshit[.] So I’m forced to recuse myself and I can’t get past the idea that I cannot believe a darn thing that Mr. Jones tells me now. So I am compelled under … Rule 2.11 [of the Maryland Code of Judicial Conduct] to disqualify myself in any further proceedings in this case, because I now believe based on Mr. Jones’ conduct and representations in this case, in his discussion and exploration of who struck John in recent days about his request for accommodation, all without following the precise instructions and procedures in the Scheduling Order and the website and resources available to him, I find that I cannot be impartial. I am personally biased or prejudiced concerning Mr. Jones and his conduct. So, I’m going to recuse myself.

The court

Notwithstanding her decision to recuse herself from the trial of the Joyner case, Judge White stated that she would preside over the October 31, 2014, hearing regarding the show cause order she had issued because, as she stated, it was her “responsibility to address it.”

Then

Mr. Jones filed multiple complaints concerning Judge White with the Commission beginning on October 20, 2014. Following an investigation, and with the authorization of the Commission, Investigative Counsel filed charges dated March 31, 2016 against Judge White. Investigative Counsel alleged that Judge White had violated various provisions of the Maryland Code of Judicial Conduct. All of the charges concerned Judge White’s conduct during the three hearings in the Joyner case during 2014.

A hearing was held by the Commission and a reprimand imposed.

(Mike Frisch)

March 27, 2018 in Judicial Ethics and the Courts | Permalink | Comments (0)

Friday, March 23, 2018

Judicial Misconduct Not Proven

The  Maryland Court of Appeals found a judge did not engage in misconduct by entering this order with an opinion to follow

WHEREAS, the Maryland Commission on Judicial Disabilities (“Commission”), pursuant to Maryland Rule 18-407 (j) and (k), referred to this Court the case of In the Matter of the Honorable Mary C. Reese, Judge of the District Court of Maryland for Howard County, Tenth Judicial Circuit, Case Nos. CJD 2015-132, CJD 2015-133, and CJD 2015-134 for expedited consideration pursuant to Maryland Rule 18-408(a), and

WHEREAS, the Commission alleged that Judge Reese violated the Maryland Code of Judicial Conduct, specifically Maryland Rules 18-101.1 and 18-102.5, as a result of her presiding over a peace order hearing in the District Court of Maryland sitting in Carroll County, and

WHEREAS, this Court having concluded that the Commission did not prove by clear and convincing evidence that Judge Reese lacked the competence and diligence necessary to complete her judicial responsibilities or otherwise committed sanctionable conduct, as defined by Maryland Rule 18-401(j), and

WHEREAS, this Court held Oral Argument on March 6, 2018 and for reasons to be stated in an opinion later to filed, it is this 22nd day of March 2018,

ORDERED, by the Court of Appeals, that this proceeding against Judge Mary C. Reese be, and is, hereby dismissed with prejudice.

The alleged misconduct -reported by WBAL TV 11 - involved comments made from the bench in two domestic violence matters.

Our coverage of the oral argument describes the allegations. (Mike Frisch)

March 23, 2018 in Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, March 20, 2018

No Recusal Required

An order denying recusal from the Chief Justice of the Ohio Supreme Court in a criminal case

Ms. Williams claims that she will not receive a fair trial before Judge D’Apolito, primarily because, she claims, he engaged in an ex parte communication with the alleged victim in this case. Specifically, she states that before a March 2017 hearing on her motion to reduce bond, the judge excluded her from an off-the-record meeting in his chambers with the alleged victim, the prosecutor, and her defense counsel. Ms. Williams believes that the judge’s conduct violated her constitutional and statutory rights and that the judge is biased against her because she is an African-American female and the alleged victim is a white male.

 Judge D’Apolito has responded in writing to the affidavit. The judge acknowledges that immediately before the March hearing, he met with the alleged victim and counsel in his chambers. According to the judge, the victim feared for his safety and counsel agreed to a discussion with the victim in chambers to reduce any anxiety. After the five-minute meeting, the alleged victim and counsel proceeded into the courtroom for a hearing on the record, in which both sides were given the opportunity to present their positions on the motion to reduce bond. Judge D’Apolito states that he denied Ms. Williams’s motion based solely on the evidence introduced during the hearing and on the record. The judge believes that he has taken the steps necessary to protect Ms. Williams’s legal rights.

There was no showing necessary for disqualification

Ms. Williams may have other remedies for her disagreement with how the judge handled her bond hearing, but she has not established that the judge’s actions were the product of bias against her.

(Mike Frisch)

March 20, 2018 in Judicial Ethics and the Courts | Permalink | Comments (0)

Monday, March 19, 2018

Appearances Matter

The Ohio Supreme Court Chief Justice granted disqualification of a judge

In July 2015, a jury convicted Mr. Kraus—who was, at the time, a member of the Ohio House of Representatives—of theft from an elderly person. In December 2016, the Sixth District Court of Appeals affirmed his conviction. State v. Kraus, 2016-Ohio-8003, 74 N.E.3d 880 (6th Dist.). In early 2017, Mr. Kraus filed a motion for new trial, a petition to vacate his conviction, and several amendments to the petition. In his filings, Mr. Kraus argues, based on newly discovered e-mails from the Ottawa County prosecuting attorney’s office, that the state of Ohio failed to turn over evidence that he could have used for a selective prosecution defense. For example, Mr. Kraus asserts that a recently released e-mail shows that although the Ottawa County prosecuting attorney had purportedly recused himself from Mr. Kraus’s criminal investigation, the prosecutor communicated with Chris Redfern, who was Mr. Kraus’s 2014 election opponent, about the investigation before Mr. Kraus was indicted. In Mr. Kraus’s words, his recent filings contain “strong evidence of interference with criminal proceedings for political purposes.” Mr. Kraus also asserts that he submitted “evidence of a close social relationship” between Mr. Redfern and Judge Crawford that predates Mr. Kraus’s conviction.

While finding that the judge could be fair and impartial, there was the potential for an appearance of impropriety

Here, Mr. Kraus describes his recent filings as setting forth serious allegations of possible collusive activities for political purposes by the Ottawa County prosecuting attorney, the special prosecutor ultimately assigned to the underlying case, and Chris Redfern. Judge Crawford admits that since Mr. Kraus’s criminal trial, he has socialized with Mr. Redfern and his wife “numerous times,” that a person with whom the judge shares his boat is a “close personal friend” of Mr. Redfern, and that Mr. Redfern has been on the judge’s boat. Given Judge Crawford’s recent familiarity with Mr. Redfern and given the current allegations involving Mr. Redfern, an objective observer might question the ability of Judge Crawford to impartially decide Mr. Kraus’s pending matters. See In re Disqualification of Lewis, 117 Ohio St.3d 1227, 2004-Ohio-7359, 884 N.E.2d 1082, ¶ 8 (explaining that an appearance of impropriety exists “if a reasonable and objective observer would harbor serious doubts about the judge’s impartiality”). Further, considering that Mr. Kraus’s current allegations involve public officials and the integrity of the judicial process, it is best that a visiting judge with no personal connections to the parties or related individuals presides over the pending posttrial issues.

 (Mike Frisch)

March 19, 2018 in Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, March 15, 2018

Six Days, Seven Nights

The Indiana Supreme Court has suspended a circuit court judge for six days without pay.

We find that Respondent, the Honorable Dean A. Young, Judge of the Blackford Circuit Court, engaged in judicial misconduct relating to a temporary restraining order that he heard and issued without adequate notice to the responding party or witnesses, and while he had a specific interest in the subject matter. The Special Masters recommended, and the parties agree, that the appropriate discipline is to suspend Judge Young for six days without pay.

The story

This case arose in 2015 from a disagreeable relationship between Derinda Shady, who was the elected Blackford County Clerk, and the County’s two judges: Circuit Court Judge Young and Superior Court Judge John Barry. The tension culminated in the two Judges holding a restraining-order hearing at which Shady was not present, then issuing a restraining order barring her from the courthouse until the order was vacated six days later.

Shady sought help for funding cuts to her office and the judges declined

Those decisions angered Shady—she told Judge Young, “You can collect your own court costs, too,” and she told Judge Barry that he’d “better bring a cop” if he came to retrieve the files. She apologized a few days later and let the files be transferred without incident. But she also continued referring to the Judges by obscene names in front of office staff and the public. (The Judges knew secondhand of her insolence but took no action.)

After the City Council did not assist

The Council rejected Shady’s staffing appeal, and Shady was rude to Council members afterward—but she made no specific threat not to do her job or to destroy court records. Judge Barry received reports about Shady’s rude behavior and told Judge Young about them, but Judge Young did not see Shady’s behavior firsthand.

The next day

The next morning, August 20, Judge Young arrived at the courthouse at about 7:30 and began making phone calls, including to one of the Council members, asking about Shady’s behavior the previous evening. He then met with Judge Barry and suggested that they “would have a hearing and ‘lock [Shady] out of her office’” if her behavior did not change.

By 8:00 that morning, Judge Young went to the Clerk’s Office to demand that Shady come upstairs to meet with him and Judge Barry. Shady was on the phone at the time, but after her call, she phoned Judge Young and told him “if he had something to say that he could come down to her office.” Judge Young replied, “Get up here! Now!” Shady came upstairs and brought her daughter, Deputy Clerk Patricia Milholland. But Judge Young was unwilling to have Milholland present. At a stalemate, Shady and Milholland went back downstairs after a few minutes, and no meeting happened that day.

Shady went to a hospital that day after a "panic attack"

Beginning at 8:25 a.m., Judges Young and Barry sua sponte began a hearing to enjoin Shady from the Courthouse. There was no written application, affidavit, or verified complaint. Shady had no written notice of the date and time of the hearing or its subject, nor did the Deputy Clerks who were present have prior written notice of the allegations against them before Judge Young questioned them.

At the hearing, with no personal knowledge of the reasons for Shady’s absence, Judge Young stated that she had “stormed out” and “fled the courthouse grounds.” He also stated that the Sheriff was “unable to secure her attendance,” even though there had been no further efforts in that regard—and even though Shady’s daughter Milholland was present. Judge Young also made comments evincing bias against Shady—including that she was “totally poisoning this workplace” and that if she’d made her “bring a cop” comment to him instead of Judge Barry, “she would be here in hunter orange this morning, in chains, where she would stay and enjoy her Thanksgiving dinner, probably her Christmas dinner as well.”

Judge Young then declared an “emergency” that “the Clerk is unfit to assume her duties,” and that she would be “locked out of the entire courthouse square.” He further announced that Shady “will be arrested” if she appeared at the courthouse before the next hearing, which he set for August 26, six days later—even though there had been no evidence or allegations that Shady had threatened to sabotage the Court’s files...

By 1:30 the same afternoon, Judges Young and Barry issued a temporary restraining order (“the TRO”) of Judge Young’s drafting, barring Shady from the courthouse grounds until a hearing set for August 26 at 11:00 a.m. The TRO stated in part that “evidence indicates that [Shady] will refuse to obey the lawful commands of the Courts regarding Court business” and “refuse or sabotage” the Superior Court’s business. Even though Judge Young was the requestor of the TRO, he presided over the hearing and did not disqualify or request appointment of a special judge.

On the morning of August 25, Shady’s attorney called Judges Young and Barry on the phone, seeking a continuance of the next day’s hearing and pointing out “that the case was in an odd posture because the judges were both parties and presiding over the case.” At that point, the Judges sought advice from counsel for the Commission, who recommended that the judges “deescalate the situation and work towards a settlement.” By that afternoon, the TRO was dissolved.

The court on de novo review agreed with the Special Masters findings on misconduct and sanction.

The Chicago Tribune reported on the proceedings below.  The charges were reported by The Indiana Lawyer. (Mike Frisch)

March 15, 2018 in Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, March 6, 2018

Judge On Trial

A very interesting - and well-argued - judicial discipline matter was heard today by the Maryland Court of Appeals.

From WBAL 11 is a report on the allegations

Judge Mary Reese is charged by a state commission with violating the code of judicial conduct.

A state panel that investigates complaints against judges is accusing Reese of judicial misconduct based on comments made from the bench in two domestic violence cases. She heard them in Carroll County.

One case involved a 17-year-old seeking a temporary peace order against her boyfriend. Standing before the judge with a black eye, she explained how she ended her relationship, then he tracked her to a friend's house where he forced his way inside and assaulted her and a friend.

Reese: Has this ever happened before?

Petitioner: No.

Reese: OK, did you have any conversation with him that day?

Petitioner: No. I blocked him from my phone. His phone number is blocked.

Reese: OK, all right. It looks to me like she's taking care of it. OK?

Reese added she needs to find that one form of abuse has occurred, and he's likely to commit the act against her again. Based on past behavior, no, so she is not going to enter the order. The judge advised the teen if it does happen again go to a commissioner's office or come back to the courthouse for relief.

In the other case, regarding a final protective order, Reese advised the petitioner, Lauren Lewis.

"If you pick a fight, you've got to expect to lose it, and when you're -- when you're picking a fight with him and he wants you out of the house or he's -- he wants you out of the car and you're not leaving, then you got to expect to lose the fight. Now, it seems to me you should go back and live with your aunt or your mother until school starts again," Reese said to Lewis.

In her response to the state commission, lawyers for Reese deny she's making unprofessional comments or engaging in unprofessional behavior:

"These charges are a targeted attack on Judge Reese by an advocacy group with a political agenda. The decisions Judge Reese made in cases this group cherry picked for its complaint were legally correct applications of Maryland Statutes to the facts presented to her."

More on judicial discipline in Maryland from the Baltimore Sun.

The commission held a hearing Thursday on charges filed against District Court Judge Mary C. Reese of Howard County. Duker said the case is a perfect example of how long complaints can take.

The Women’s Law Center of Maryland filed two complaints with the commission in July 2015. The commission ruled in April, nearly two years later, that Reese’s actions were “manifesting bias.”

Reese rejected the request of a 17-year-old girl for a temporary peace order against a man who had left her with a black eye visible in the courtroom. The girl told the judge she had blocked the man’s phone number to avoid contact with him.

“It looks to me like she’s taking care of it,” Reese said in court transcripts.

In a different domestic violence case, Reese told a woman that if she picks a fight with her abuser “you’ve got to expect to lose it,” according to transcripts.

In a response to the complaint, Reese called the allegations “a targeted attack on Judge Reese by an advocacy group with a political agenda.” She said she ruled correctly in both cases.

Michelle Daugherty Siri, executive director of the Women’s Law Center of Maryland, said she would not comment because the case is still pending.

The commission said its investigation “revealed sanctionable conduct by Judge Reese with regard to her unprofessional comments and behavior.”

The court was very much engaged in the argument and granted extra time to the advocates. 

Oral argument linked here. (Mike Frisch)

March 6, 2018 in Judicial Ethics and the Courts | Permalink | Comments (1)

Saturday, March 3, 2018

Probate Judge Accused Of Handling His Own Private Practice Matters

A recently-certified complaint alleging misconduct by a probate judge may be found on the web page of the Ohio Board of Professional Conduct.

The judge was sworn in to fill an unexpired term on July 8, 2014 as a Mahoning County Probate Judge. He was coming from an obviously busy private practice.

One allegation involves his representation of an executor who had apparently depleted estate assets. He warned her that the allegations created a "serious situation that needs your immediate attention." 

The executor failed to give the serious matter that required attention.

The accused judge did not report the possible defalcation.

Rather, it is alleged, he presided over that very same case and issue as a probate judge!

The executor's brother filed the complaint.

Not only that.

It is further alleged that he presided over 200 matters in which he had represented parties in private practice, appointed fiduciaries, approved legal fees for himself and his former firm and other activities associated with his private work.

The judge's answer admits most of the factual averments but appears to deny misconduct. The 200 matters were apparently the result of an oversight.

The case is In re: The Complaint Against  the Hon. Robert Ruso, Jr. The pleadings can be accessed here. (Mike Frisch)

March 3, 2018 in Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, March 1, 2018

A Magistrate Can Dream

A recent opinion from the South Carolina Advisory Committee on Standards of  Judicial Conduct

OPINION NO. 4 - 2018

RE: Propriety of a full-time magistrate judge working part-time as an independent sales representative for a travel club.

FACTS

A full time magistrate has inquired about the propriety of working part-time as an independent sales representative for a travel club. The judge is a member of a travel club and has the opportunity to become employed as a sales representative. In addition to compensation for the sales made, a sales representative may also receive dream vacation packages, entertainment discounts, discounts on dining, car rentals, airfare, etc. from the travel club.

 CONCLUSION

A full-time magistrate may work part-time as an independent sales representative, provided that such employment does not conflict with the judge’s judicial duties.

(Mike Frisch)

March 1, 2018 in Judicial Ethics and the Courts | Permalink | Comments (0)

Friday, February 23, 2018

Room At The Inns

The South Carolina Advisory Committee on Judicial Ethics opines on Inns of Court membership of a family court judge

The American Inns of Court have been in existence in South Carolina for some time. The American Inns of Court is an association of lawyers, judges, and other legal professionals from all levels and backgrounds. Through regular meetings, members are able to build and strengthen professional relationships; discuss fundamental concerns about professionalism and pressing legal issues of the day; share experiences and advice; provide mentoring opportunities; and advance the highest levels of integrity, ethics, and civility. A steering committee has been formed and created for a new chapter. A family court judge in the area is on the steering committee and wishes to participate in the chapter. However, because each inn determines its own membership by extending invitations, rather than being open to all members of the bar, the judge has inquired into the propriety of becoming a member. Specifically, the judge is concerned as to whether participation as a member would cause some non-member lawyers to feel that inn members have different access to the judge, i.e., create the appearance of partiality.

Room at the Inns for judges

The inns of court is a group whose activities are dedicated to the law, the legal system and the administration of justice. As such, a judge's participation in the group's activities, per se, is not unethical.

With regard to whether the judge’s participation could give other attorneys a perception that other Inns of Court members would have more, presumably preferred, access to judge members, this Committee finds that such perception would be unfounded and certainly would not serve as a bar to membership in an inn of court. As noted in the facts presented, historically judges have been members in the American Inns of Court and there are already several South Carolina chapters which include judges as members. There does not appear to be an allegation of preferential treatment of inn members or disqualification of judges in the areas where these other South Carolina chapters exist. In addition, other states have clearly allowed judges to be members of inns of court, as long as the judge abides by the other judicial canons regarding fundraising and/or recruitment of members. See, e.g., Serving as Member and Officer of Inn of Court; Involvement in Fundraising and Recruitment, (Mass. Sup. Jud. Ct. Comm. Jud Eth. 2005) 2005 WL 6734491, at *2. See also, Alabama Judicial Ethics Opinion 95-579, 1995 WL 17956160, at *1 (allowing judge to use surplus campaign funds to pay special membership dues to the Alabama State Bar and to pay membership dues to the local chapter of the American Inn of Court); Florida Judicial Ethics Opinion 2010-32, 2010 WL 7809088, at *1 (allowing a judicial member of an inn of court to participate in a program or skit performed by the chapter where the “best skit” award includes a monetary contribution to a charity of the group's choice).

(Mike Frisch)

February 23, 2018 in Judicial Ethics and the Courts | Permalink | Comments (0)

Monday, February 19, 2018

Thinking Does Not Disqualify Judge (Think About That)

The Florida Judicial Ethics Advisory Committee opines:

Opinion Number: 2018-03
Date of Issue: February 4, 2018

ISSUES

1. Whether a judge must recuse based on information that an attorney who regularly appears before the judge is “thinking” of running against the judge.

ANSWER: No, unless a personal bias or prejudice against the attorney or the attorney’s client has developed.

2. Whether the judge may ask the attorney directly whether the attorney intends to run against the judge.

ANSWER: No.

FACTS

The inquiring judge has received “credible” information that an attorney who appears before the judge on a regular basis is “thinking” about running against the judge in the upcoming election cycle.

The judge also notes that there is a pending dispute between the attorney’s family and the judge’s parents, the origin of which occurred “a couple of years ago.” The judge states that there is no issue between the judge and the attorney over the matter; nor has there ever been a related recusal or motion to disqualify.

The judge reports that the community in which the judge sits is very small, and that the attorney appears in front of the judge frequently representing the same client. The judge reports having no feeling of personal bias against the client, but is concerned about the appearance of impropriety. The judge is also concerned about the impact recusal would have on the dockets of the other judges in the jurisdiction in which the judge sits.

Analysis

We agree with the Arizona Judicial Ethics Advisory Committee. We do not believe that either rumors or direct statements from an attorney to others that the attorney is “thinking” about running against the judge, or notice directly from the attorney to the judge that the attorney is “thinking” about running or intends to run, would reasonably draw into question the judge’s impartiality. The inquiring judge here has stated expressly that the judge has not developed a bias against the attorney’s client but is merely concerned about the appearance of impropriety. We conclude that until the attorney formally announces opposition to the judge, there is not a reasonable basis to question the judge’s impartiality that needs to be addressed by the judge.

(Mike Frisch)

February 19, 2018 in Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, February 8, 2018

Disqualification Denied

The Ohio Supreme Court denied motions to disqualify judges for bias in two matters. 

Mr. Bristow claims that Judge DeWeese should be removed for several reasons, including that in 1997, Mr. Bristow was convicted of a crime against Judge DeWeese. Because of that conviction, Mr. Bristow believes that an appearance of impropriety will exist if Judge DeWeese presides over the underlying case.

Judge DeWeese has responded with his own affidavit. The judge acknowledges that court records show that in 1997, Mr. Bristow wrote threatening letters to the county sheriff, sheriff’s deputies, prosecuting attorneys, and both general-division common pleas judges and that he also filed groundless legal actions against some of those individuals. He later pled guilty to retaliation against public officials. Judge DeWeese avers, however, that he remembers “little” about the 1997 retaliation case and that he does not recall Mr. Bristow’s threats or communications to him. The judge concludes, “Nothing about the case [Mr. Bristow] brings up from 20 years ago creates any resentment or hostility from me towards him,” and the judge affirms that he will decide the underlying case based solely on its legal merits...

Although an appearance of impropriety certainly could exist if a litigant appearing before a judge had previously committed a crime against that judge, Mr. Bristow has not established that an objective observer would harbor serious doubts about Judge DeWeese’s impartiality in this case. Judge DeWeese was one of several public officials that Mr. Bristow retaliated against in 1997, and in the judge’s sworn affidavit, he avers that he does not recall Mr. Bristow’s threats or communications from 20 years ago. Nor is there any indication that those communications were of such a personal or hostile nature toward Judge DeWeese that the risk of bias would be intolerably high if he presided over the underlying case. Based on this record, the well-informed, objective observer would not question Judge DeWeese’s impartiality.

In the second matter, the court found that the litigant's motion was untimely.

If Ms. Marshall believed that Judge Gall was biased or prejudiced against her, she should have filed an affidavit of disqualification as soon as possible after the incidents giving rise to the alleged bias—rather than waiting until the day before a scheduled hearing.

(Mike Frisch)

February 8, 2018 in Judicial Ethics and the Courts | Permalink | Comments (0)

Saturday, February 3, 2018

Misconduct Charges Filed Against Justice Of Ohio Supreme Court

An Ohio Supreme Court Justice  has been charged by Special Disciplinary Counsel with ethics violations that include hearing cases brought by the office of his state Attorney General father.

The complaint can be found at this link as Frick v. DeWine. 

The allegations involve his active participation in Attorney General matters (he contended that he was orally advised by judicial ethics officers that he must recuse only when his father personally appears in a case) and, through various social media posts, "allowed his father ...to convey the impression that he is in a position to influence [the justice]." 

Attorney General DeWine is a candidate for the office of Governor. The allegations state that "Respondent attends public events with his father, and his image is used as part of his father's public office web site and his father's political and social media presence." 

Thus, it is alleged, a "reasonable  observer" would conclude the justice must recuse himself from cases where his father's office is counsel.

There are two specific complaints - one involving a bar applicant - of failure to recuse.

Another allegation involves a paid summer job given he solicited on behalf of his son - not a law student - with a prosecutor's office. 

There are extensive exhibits attached to the complaint, including an October 25, 2016 letter from the justice's retained counsel that essentially appears to confirm the oral advice regarding recusal.

Cincinatti.com reported on the charges

 A complaint accuses Ohio Supreme Court Justice Patrick DeWine of improperly hearing cases involving the office of his father, state Attorney General Mike DeWine.

The complaint filed Tuesday by a special disciplinary counsel also accuses the Republican justice from Cincinnati of improperly using his influence in soliciting Hamilton County Prosecutor Joe Deters to hire Patrick DeWine's son for a summer job.

The complaint seeks the justice's disqualification from hearing cases involving Republican Deters and from Republican Mike DeWine's office.

Patrick DeWine's statement Wednesday says he sought legal ethics experts' guidance before becoming a justice and has followed their advice "to the letter."

An Attorney General's Office statement Wednesday says it doesn't advise any judge "on recusal decisions."

A message seeking comment was left for Deters.

A judicial panel will hear the complaint.

From the Columbus Dispatch (Mike Frisch)

February 3, 2018 in Judicial Ethics and the Courts | Permalink | Comments (0)

Saturday, January 27, 2018

Bank Shot

A litigant's involvement in the refinance of the judge's home did not form a basis for recusal, held the Tennessee Court of Appeals in affirming the trial court 's denial of the motion.

the Petitioner, by and through counsel, filed a Motion for Recusal. In his motion, the Petitioner noted that he was an employee at a “local financial institution,” where he worked as a “market valuation officer” and that the Judge had an ongoing business relationship with the bank. He alleged he “was directly involved in a decision-making process that ultimately resulted in an effect on the Court’s finances.” Because of certain banking laws, the Petitioner was not more specific in his motion, and he did not attach an affidavit, intending instead of presenting live testimony at the hearing.

The judge denied the motion.

The foregoing considered, we have identified the following three issues that require our analysis: (1) Whether the trial judge showed actual bias against Petitioner by failing to allow Petitioner to fully testify as to the facts supporting his motion for recusal; (2) Whether recusal is necessary based on Petitioner’s allegations that the trial judge was aware that Petitioner had “a direct, negative effect on the Court’s personal finances and the effect was substantial;” and (3) Whether the trial judge is a material witness to this matter.

As to the judge's cursory denial

the contention that the trial judge showed bias by refusing to allow Petitioner to testify in support of his motion for recusal is not sufficient, standing alone, to justify recusal. Moreover, Petitioner failed to comply with Rule 10B by not attaching an affidavit that verified the specific factual grounds supporting disqualification of the judge. Therefore, his failure to comply with Rule 10B provides a basis to deny the petition without a hearing on the motion.

I'll take refinance

We find no error with this decision because Petitioner failed to identify any factual basis to support his suspicion or unfounded belief that the trial judge knew or even suspected that Petitioner had made a decision that adversely affected the trial judge’s application for a loan. Moreover, the trial judge stated with clarity that he had no knowledge that Petitioner played any role in the loan application process. The trial judge also stated that he was unaware that there had been an opportunity for a lower interest rate, and he was not aware that Petitioner was involved in a decision that resulted in an increase in the interest rate. As the judge succinctly put it, “I applied for [the loan]. I was told, here is the deal, and I accepted the deal. . . . I was unaware of [Petitioner’s] involvement.”

Although Petitioner believes the judge knew of his involvement in the loan process, which suspicion is merely based on the fact that the judge knew Petitioner worked for the bank, this belief or suspicion lacks a factual foundation.

The judge is not a witness

The trial judge denied having any knowledge of the extrajudicial facts of circumstances Petitioner relies on, and this fact, without more, does not make the judge “a material witness concerning the matter,” the matter being the divorce proceedings. To the contrary, the trial judge’s response has no bearing on the substantive issues in the parties’ divorce, only the motion for recusal. Accordingly, the statements made by the judge from the bench and in the order denying the motion to recuse do not require recusal based on RJC §2.11 of Tenn. Sup. Ct. R. 10.

We also find it disingenuous for Petitioner to contend that the trial judge must recuse himself based on the judge’s response to the motion for recusal. If this were the case, every judge who may be justified in denying a motion to recuse on the basis he or she had no knowledge of extrajudicial facts or circumstances would, nevertheless, have to be recused based on statements the judge made in denying the motion. This contention is neither logical nor the intent of Rule 10B.

(Mike Frisch)

January 27, 2018 in Judicial Ethics and the Courts | Permalink | Comments (0)

Friday, January 26, 2018

Pass the Gavel (Case)

The Maine Supreme Judicial Court has reprimanded a former judge for a failure to recuse

The facts are not disputed. On August 6, 2015, Judge Nadeau appointed Kerri Gottwald to serve as guardian for the minor daughter of Devora Gavel. Sometime thereafter Gavel made negative social media postings concerning Judge Nadeau, to which a person using the name of Judge Nadeau’s wife responded. Judge Nadeau acknowledges in his brief that he was aware of Gavel’s postings.

Gavel sought recusal but he did not

Nine days later, Gavel filed a complaint against Judge Nadeau with the Committee on Judicial Responsibility and Disability, asserting, in part, that “it is my belief that Nadeau intentionally refused to recuse himself, with full knowledge and awareness of his clear bias, in an effort to retaliate against, humiliate and bully me for speaking out against him in the upcoming election.” (Emphasis in original.) The Committee reported the matter to us and recommended disciplinary action against Judge Nadeau for violating Rule 2.11(A). Both the Committee and Judge Nadeau filed briefs and the report is now in order for our consideration.

 The court

Because of the combined effect of Judge Nadeau’s wife’s direct contact with Gavel through social media postings that Judge Nadeau was aware of, and Judge Nadeau’s acknowledgement that he had a bias that would require his recusal, Rule 2.11(A) required Judge Nadeau to recuse. Judge Nadeau acknowledged that he harbored a bias against Gavel at the outset of the hearing. The source of that bias was evidently the extra-judicial negative social media exchange involving Gavel, because when Gottwald’s counsel pointed out that a credibility determination based on a prior court proceeding did not require recusal, Judge Nadeau referenced Gavel’s pro se motion to recuse, in which she cited only the social media exchange, and then again said that “if there were an evidentiary hearing, I think, it would be appropriate for me to disqualify myself.” Despite the litigant’s indication that she was “uncomfortable” with the process, Judge Nadeau actively participated in negotiating and ultimately approving the final result, which, as evidenced by the detailed directive to Gavel concerning her potential future income, see supra n.5, required considerable judicial involvement.

 Judge Nadeau has left the bench amid unrelated ethics violations

We conclude that although a sanction resulting from this violation is warranted in order to deter others from similar misconduct, in Judge Nadeau’s case that need is tempered by the reality that he is no longer a judicial officer and is currently serving a lengthy suspension from the practice of law.

(Mike Frisch)

January 26, 2018 in Judicial Ethics and the Courts | Permalink | Comments (0)

Pleading While Intoxicated Gets Nebraska Judge Reprimanded

The Nebraska Commission on Judicial Qualifications has publicly reprimanded a judge for his actions in connection with an alleged violation of probation.

The defendant was on probation for reckless driving and was required to abstain from alcohol.

When a hearing was scheduled for alleged drinking, the case was called but the defendant was not in the courtroom. A person identified as the defendant's aunt told the judge that he was "passed out in the car" after drinking all night and had "downed a bottle of tequila" and that she (the aunt) was unable to get him to the courtroom.

Fifteen minutes later, the defendant was "brought into the courtroom in a wheelchair" and the case was recalled.

The judge took a guilty plea to the probation violation and had the defendant taken into custody where he tested a .4 blood alcohol content.

The judge knew or should have known that he was "probably too intoxicated" to enter a knowing and voluntary plea. 

When the news reported the actions, the judge permitted the defendant to withdraw the plea and vacate the sentence.

That offer was declined. (Mike Frisch)

January 26, 2018 in Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, January 16, 2018

Consequences Of Magistrate - Sheriff Romance

The South Carolina Advisory Committee on Standards of Judicial Conduct opines on the implications of a dating relationship

RE: Propriety of a magistrate holding bond hearings, signing warrants and presiding over preliminary hearings where the magistrate is dating the county sheriff.

FACTS

A county magistrate just began dating the county sheriff. The magistrate is the presiding judge over Bond Court and the magistrate’s duties include: setting bonds twice a day, signing warrants, signing search warrants, and presiding over preliminary hearings. The judge inquires as to under which circumstances the judge must recuse himself/herself and/or when the judge would need to disclose the relationship.

CONCLUSION

The judge shall disqualify himself in a proceeding where he or she has a potential personal bias, such as handling any matters in which employees of the sheriff, whom the judge is dating, appear as witnesses.

OPINION

A judge must disqualify himself or herself in a proceeding where his/her impartiality might reasonably be questioned. Rule 501, SCACR, Canon 3E(1).1 Furthermore, the judge must disqualify himself/herself if the judge has a personal bias concerning a party. Rule 501, SCACR, Canon 3E(1)(a). In 17-2002, this Committee addressed a situation in which a magistrate was dating a police officer who might be required to bring matters, such as arraignments, bond hearings, and warrant requests, before the magistrate when the municipal judge was unavailable. We determined that the relationship between the judge and his girlfriend could affect the outcome of the proceedings and that the magistrate should recuse himself in any matters brought before him by his girlfriend. 

After discussing earlier opinions

In this case, the magistrate is dating the sheriff. While it may be unlikely that the sheriff personally appears before the magistrate, the sheriff’s employees will regularly appear before the magistrate for bond hearings, warrant requests, and other matters. Thus, this situation can be distinguished from Opinion 17-2002 in which the judge was dating a police officer, but not the chief of police or the sheriff (i.e., a person whose employees will regularly appear before the Court). The Committee’s previous opinions finding no conflict either involved a non-supervisory law enforcement officer, no overlap in jurisdiction, or some other distinguishing factor. This situation presented here is more comparable to Opinions 1-2005, 8-2007, and 1-2009 in which the judge would have to frequently recuse himself or herself because the judge’s spouse or his/her employees would regularly appear in the judge’s court. Even if the judge and the sheriff are not married, their relationship could lead to the judge’s impartiality being questioned and would require disqualification in any cases in which the sheriff and/or the sheriff’s employees appeared.

(Mike Frisch)

January 16, 2018 in Judicial Ethics and the Courts | Permalink | Comments (1)

Thursday, December 28, 2017

Judges On Parade

From the web page of the Ohio Supreme Court

The Board of Professional Conduct issued an advisory opinion concerning the permissibility of judges appearing in community parades.

In Advisory Opinion 2017-8, the board concludes that a judge may appear in a community parade, regardless of whether the parade is held in an election year. A judge is not barred by the Code of Judicial Conduct from appearing in a parade in a non-election year, even if the activity may be considered “campaigning.”

Judges generally are encouraged by the Code of Judicial Conduct to participate in community activities. However, participation is only permitted if it will not undermine the independence, integrity, or impartiality of the judge.  For that reason, the opinion recommends that a judge consider the nature and purpose of the organization sponsoring a parade before agreeing to participate. Participation in a parade organized by a group that practices discrimination is prohibited by the Code of Judicial Conduct. Participation in a parade sponsored by an entity that is promoting a particular position on a controversial issue may later call into question the judge’s impartiality in cases involving the same issue.

The opinion further advises that judges avoid the appearance of a political endorsement by not walking with or riding in a parade with non-judicial candidates. The same advice applies to appearing with officeholders with whom the judge may frequently interact, including prosecutors and sheriffs, because of the potential for eroding judicial independence and impartiality.

The opinion withdraws former Advisory Opinion 1993-09.

(Mike Frisch)

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

Indefinite Suspension Of Former Judge For Domestic Violence

The Ohio Supreme Court declined to impose disbarment of a former judge for a serious act of domestic violence

We agree with the board that Mason committed the violations alleged in the complaint. However, we disagree with the board that disbarment is the appropriate sanction for Mason. Instead, we impose an indefinite suspension with no credit for time served on the interim felony suspension and with added conditions for reinstatement.

The case

When the misconduct in this case occurred, Mason was a sitting judge on the Cuyahoga County Court of Common Pleas, General Division. During all relevant times, he was subject to the Code of Judicial Conduct as well as the Rules of Professional Conduct.

In March 2014, Mason and his wife, Aisha Fraser Mason (“Fraser”), separated, with Mason continuing to live in what was the marital home and Fraser residing in an apartment. During their separation, Mason and Fraser shared equally in the custody and parenting of their two minor children.

On August 2, 2014, Mason, Fraser, and the children attended a funeral service for Mason’s aunt. Mason and Fraser agreed that after the service, Mason would drop Fraser off at her apartment and Mason would spend the afternoon with the children.

During the ride to Fraser’s apartment, the couple engaged in a conversation about their relationship. As the discussion progressed, Mason became upset and began assaulting Fraser, all the while continuing to drive. Mason struck Fraser repeatedly in the head, hit Fraser’s head against the armrest, the dashboard, and the window of the passenger door, and bit Fraser on her face. Fraser attempted to escape the moving car, but Mason grabbed her hair. When the car stopped at a red light, Fraser was able to open the door, but fell to the ground as she tried to flee. With the two children still in the car, Mason placed the vehicle in park, got out, and began to strike Fraser as she lay on the ground.

Mason then returned to his vehicle and drove away, leaving Fraser behind. Mason and Fraser’s two children (ages six and four at the time) were seated in the back seat and witnessed the events. The older child, who has special needs and possesses limited verbal abilities, was quiet while the attack was occurring, but the younger child was screaming.

Upon arriving at the house, Mason called his sister, Dr. Lynn Mason, and asked her to come and pick up the two children because he intended to shoot himself. He was arrested by police later that day.

 As a result of the attack, Fraser sustained severe physical harm to her head, face, and neck, including an orbital blowout fracture under her left eye. She was hospitalized overnight from August 2-3, 2014, following the attack, and again from August 8-9, 2014, for surgery. Fraser subsequently arranged for her two children to begin counseling. As of February 2017, they continued to receive counseling as a result of what they witnessed on August 2, 2014.

He was removed from office and pleaded guilty to felony charges.

Sanction less than disbarment

In this case, Mason was convicted of a felony based on a single violent assault. Brutal it surely was. But it was not shown to be premeditated or part of a pattern of behavior. In this regard, we consider this case to be distinguishable from those cited by the board. Instead, we look to Ohio State Bar Assn. v. McCafferty, 140 Ohio St.3d 229, 2014-Ohio-3075, 17 N.E.3d 521. In that case, a sitting judge was convicted of lying to the Federal Bureau of Investigation. This court imposed an indefinite suspension with no credit for time served. We distinguished previous cases, including those cited by the board in this case: “[T]he circumstances in this case can be distinguished from Gallagher, McAuliffe, and Hoskins, in which judges were permanently disbarred. In those cases, the judges had engaged in criminal conduct over a period of time, from a few days to months, and the misconduct was preplanned.” Id. at ¶ 23. We emphasized that McCafferty’s violations were unplanned and occurred on a single impromptu occasion, rather than as a pattern of premeditated criminal conduct. Id. at ¶ 24. Therefore, we concluded, “imposition of the system’s most severe sanction [was] not warranted * * *.” Id.

The court imposed an indefinite suspension with conditions for reinstatement.

The oral argument is linked here. (Mike Frisch)

December 28, 2017 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)