Friday, March 10, 2017

Judge Not Responsible For Campaign Efforts Of Friends

The Alaska Supreme Court has dismissed charges against an unnamed judge

Following a disciplinary sanction, a judge was not recommended for retention by the Alaska Judicial Council. Although the judge chose not to campaign, an independent group supported his retention and campaigned on his behalf. After the election the Alaska Commission on Judicial Conduct filed a disciplinary complaint against the judge and later imposed an informal private admonishment on the judge because he did not publicly address allegedly misleading statements made by the independent group. Because the statements clearly originated with the independent group rather than the judge, and the judge had no knowledge of one statement, the judge had no duty to publicly address any of the statements. Accordingly, we reverse the Commission’s admonishment and dismiss the Commission’s complaint against the judge.

The story after the judge declined to campaign

A close friend of the judge’s wife learned about the Council’s recommendation and decided to fund an independent campaign to support the judge’s retention. She was careful not to share her decision with the judge or his wife. A few weeks before the election she hired a local agent and told him “to put a face to the name and tell folks about [the judge]’s background and experience.” The agent registered an independent expenditure group called “Friends of [the Judge],” and his team produced mailers, billboards, social media advertisements, and a website for the campaign. The friend was the sole financial contributor, and the agent exercised nearly complete control over the campaign’s messaging.

The judge was kept ignorant of the independent campaign, and the judge had no control over the campaign’s activities. The friend stated that she “did not tell [ the judge or his wife] of [her] plans, did not involve them in any way in any of the campaign activities, did not solicit or seek their input, and did not request their review or approval of the plans or any materials.” Likewise, the agent said the judge had “no awareness or influence . . . . He didn’t approve anything that we put out there.” The agent did arrange to meet the judge in person and “snap[] a couple photographs” for the campaign, but the judge “seemed a little confused as to who [he] was.” The agent told the judge only that he was “a fan of [the judge] and [they had] mutual friends.”

Although the judge was aware that he had supporters, he was not aware that there was a campaign. The judge avoided campaigning himself but understood from his counsel that allowing an anonymous supporter to take his photograph would not be improper. He rejected all other requests, telling supporters who wanted to help that he was not involved in any campaigns.

Shortly after the election, the Commission initiated a complaint against the judge, alleging material misrepresentations in the items circulated by the campaign. The Commission later clarified that it was investigating the judge’s duty to correct the independent campaign’s alleged misrepresentations. The Commission focused its attention on three specific campaign items: a mailer, the website, and a social media advertisement...

The social media advertisement featured an image of the judge tied to a stake and surrounded by flames with the caption: “Witch Hunts are so 18th century.” The agent’s team had digitally altered the judge’s facial expression, added the stake and flames, and come up with the concept and text. The “witch hunt” image was used only online.

The court had the power to consider the merits

As a preliminary matter the Commission argues that we should not exercise our power of review over its informal private admonishments. The Commission makes three arguments: (1) the statute governing the Commission’s disciplinary authority does not contemplate our review of informal  admonishments; (2)informal admonishments are an important tool that will be compromised if they are subject to our review; and (3) an informal admonishment is not a sanction and therefore not a formal action to be reviewed. We are not persuaded.

The merits

We agree with the judge’s argument that a judicial candidate’s awareness of an independent campaign is not, by itself, enough to impose a duty to monitor and address the campaign’s statements. Such a duty might force the candidate to wade into the fray, creating tension with the candidate’s obligation to “maintain the dignity appropriate to judicial office.”  Such a duty might also chill others’ protected speech in violation of the U.S. and Alaska Constitutions.

But we do not suggest that a judicial candidate’s failure to address a known third party misrepresentation would never violate a canon. There may be situations where a candidate must address an independent statement in order to uphold judicial integrity and independence, avoid impropriety, or maintain dignity...

This duty is “one of taking ‘reasonable precautions’ to avoid having ‘a negative effect on the confidence of the thinking public in the administration of justice.’ ”

The independent campaign produced a mailer and a website containing two prominent quotes. The Commission found that the quotes gave the false impression that another judge and the Commission endorsed the judge’s retention. Both the mailer and the website stated that they were “Paid for by Friends of [the Judge]” and that the communications were “not authorized, paid for or approved by the candidate.” As required by law, the disclaimer was placed so as to be “readily and easily discernible.”

We conclude that the judge had no duty to publicly address the quotes or these materials. We reject the Commission’s conclusion that the judge knowingly misrepresented facts in violation of Canon 5A(3)(d)(iii); the record contains no evidence suggesting that the judge had knowledge of the mailers before they were distributed, let alone involvement or control in the selection of the quotes.

As to the witch hunt imagery

The independent campaign also produced a social media advertisement featuring an image of the judge tied to a stake with the caption, “Witch Hunts are so 18th century.” The Commission stated that the image was “inappropriate to the dignity appropriate to judicial office.” The judge agrees that the image was “clearly inappropriate” and that the independent group should not have used the image. However, the judge maintains that he did not see the image until well after the election.

We conclude that the judge had no duty to publicly address the image. There is nothing in the record to contradict his claim that he had no knowledge of the advertisement until well after the election; therefore he could not have knowingly misrepresented facts in violation of Canon 5A(3)(d)(iii). We also see no appearance of impropriety; a reasonable person viewing the ad would not believe that the judge had authorized the image or was involved in its production merely because he was the image’s subject. And because the judge did not learn about the image until months after the election, he could not have taken any steps to avoid such an appearance and accordingly could not have violated Canon 2. The judge’s consent to be photographed did not give rise to a duty to seek out and monitor an independent campaign he could not legally control, let alone a duty to stop any independent group from publishing any image. The judge should not be admonished for his failure to publicly address a social media image which he had no duty to address and which he did not even know about until months after the election.

Complaint dismissed. (Mike Frisch)

March 10, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, March 9, 2017

Food And Drink No Violation Of Judicial Ethics

 From the Florida Judicial Ethics Advisory Committee

Opinion Number: 2017-04
Date of Issue: March 7, 2017

ISSUES

1. May a judge allow law-related organizations and a private law firm to jointly host a free post-seminar reception at the judges’ courthouse?

ANSWER: Yes.

2. May a judge accept food/drink provided by the organizations/law firm at such an event?

ANSWER: Yes.

FACTS

The inquiring judge has organized, for judges and attorneys, a free diversity training seminar which will take place at the judge’s courthouse. Continuing Legal Education and Continuing Judicial Education credit hours are expected to be awarded. The Circuit’s Chief Judge has approved this event and use of the courthouse, as well as approving informative fliers prepared by the inquiring judge which were distributed by the judge and fellow judges in their respective hearing rooms.

Three local law-related organizations and a local personal injury firm have contacted the judge and offered to jointly host a free post-seminar reception for all of the anticipated 200-400 seminar attendees. The organizations consist of a legal aid group, a women lawyers association, and an African-American lawyer association. Both of the latter two groups are open to all Florida attorneys. The judge has not solicited any of these groups or the firm to host the reception, and none of them have any special relationship with any of the judges (federal and state) who will be presenting at the seminar. Light food/drink items (possibly hors d’oeuvres and/or alcoholic beverages) may also be provided.

DISCUSSION

Diversity training is mandatory for judges; organization and participation in such a free program (as opposed to a fund-raising seminar) is permitted and indeed encouraged. Fla. Code Jud. Conduct, Canon 4B; see also Fla. JEAC Op. 87-3 (A judge may participate in a legal seminar which is sponsored by a private law firm); Fla. JEAC Op. 99-27 (A judge may attend, but not participate, in a bench/bar professionalism seminar when the event includes fund-raising).

Free courthouse seminars are commonplace. As to the use of the judge’s courthouse for this seminar, this Committee sees no impropriety as set forth in Canon 2B (“A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge.”).

The judge is also inquiring about the appropriateness of accepting any food/drink provided by the hosts at the reception. Canon 5D(5) of the Code prohibits gifts that judges may receive, with several exceptions. One such exception permits a judge to accept a gift if the donor is not a party or other person who has come or is likely to come or whose interests have come or are likely to come before the judge; and if its value exceeds $100.00, the judge reports it in the same manner as the judge reports compensation in Canon 6B. To the extent that any small food/drink items are consumed by the judge, a majority of this committee feel that such are inconsequential and do not constitute a gift.

Four of the twelve committee members believe that the food/drink provided by the hosts is a gift to the judge pursuant to Canon 5D which may be accepted (subject to the donor “not likely to come before the judge” restrictions set forth in the Canon), and must be reported if the aggregate value of the food/drink exceeds the $100.00 threshold. In Op. 99-3, the committee approved a judge’s former law firm sponsoring and paying for an investiture reception and related expenses, and opined that the total expenses should be reported as a gift. The majority in this committee, however, see a significant distinction between a judge’s personal investiture reception and a judge’s organization of a law-related seminar for purposes of determining what constitutes a gift.

 (Mike Frisch)

March 9, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, March 7, 2017

Judge Censured, Not Removed, For Refusal To Conduct Same-Sex Marriages

A judicial misconduct decision of the Wyoming Supreme Court

Judge Ruth Neely objects to the Wyoming Commission on Judicial Conduct and Ethics’ (Commission) recommendation that she be removed from her positions as municipal court judge and part-time circuit court magistrate because of her refusal to perform same-sex marriages in her judicial capacity as a part-time circuit court magistrate. We conclude, as have all the state judicial ethics commissions that have considered this question, that a judge who will perform marriages only for opposite-sex couples violates the Code of Judicial Conduct, and we hold that Judge Neely violated Rules 1.2, 2.2, and 2.3 of the Wyoming Code of Judicial Conduct. However, we do not accept the Commission’s recommendation for removal, and instead order public censure, with specific conditions.

The judge had sought guidance from the Judicial Ethics Advisory Committee by asking

Without getting in too deeply here, homosexuality is a named sin in the Bible, as are drunkenness, thievery, lying, and the like. I can no more officiate at a same sex wedding than I can buy beer for the alcoholic or aid in another person’s deceit. I cannot knowingly be complicit in another’s sin. Does that mean I cannot be impartial on the bench when that homosexual or habitual liar or thief comes before me with a speeding ticket? Or the alcoholic appears before me for yet another charge of public intoxication? No. Firmly, no. I have been the municipal court judge for the Town of Pinedale for over 20 years; and there has not been one claim of bias or prejudice made by anyone who has come before me. Not the homosexual, not the alcoholic, not the liar, not the thief. Not one.

No answer was forthcoming.

The court majority

Our conclusion that Judge Neely’s expressed refusal to conduct same-sex marriages violates the Code of Judicial Conduct is in line with every other tribunal that has considered the question. The judges in In re Matter of: The Honorable Gary Tabor and In re Roy S. Moore, were disciplined for their conduct. Five state advisory commissions offered opinions, consistently stating that a judge may not perform judicial functions for some parties while declining to perform them for same-sex couples without violating the Code of Judicial Conduct: Supreme Court of Ohio, Board of Professional Conduct, Opinion 2015-1, Judicial Performance of Civil Marriages of Same-Sex Couples (August 7, 2015) (a judge may not decline to perform same-sex marriages, and may not  decline to perform all marriages in order to avoid marrying same-sex couples); Supreme Court of Wisconsin, Judicial Conduct Advisory Committee, Opinion No. 15-1 (August 18, 2015) (judge may not decline to perform only same-sex marriages, but may decline performing all marriages); Arizona Supreme Court, Judicial Ethics Advisory Committee, Revised Advisory Opinion 15-01, Judicial Obligation to Perform Same-Sex Marriages (March 9, 2015) (judge may not distinguish between same-sex and opposite-sex couples); Nebraska Judicial Ethics Committee Opinion, Opinion 15-1 (June 29, 2015) (a judge who is willing to perform traditional marriage manifests bias or prejudice by refusing to perform same-sex marriage); Judicial Conduct Board of Pennsylvania Newsletter, Impartiality in Solemnizing Marriages, by Elizabeth A. Flaherty, Deputy Counsel, Judicial Conduct Board (No. 3 Summer 2014) (judge who decides not to perform wedding ceremonies for same-sex couples must opt out of officiating at all wedding ceremonies). Only in Mississippi Comm’n on Judicial Performance v. Wilkerson, 876 So.2d 1006, 1016 (Miss. 2004), did the tribunal find that a judge’s comments disparaging gays and lesbians did not violate the Code of Judicial Conduct. But there, only the judge’s speech as a private citizen was at issue; not his conduct as a judge, and there was no issue of performing marriages. See Boland, 975 So.2d at 892 (distinguishing Wilkerson on basis that judge in Boland made remarks while acting in her judicial capacity).

Sanction

Weighing these factors, we find that Judge Neely’s misconduct warrants a public censure. We further find that Judge Neely must perform her judicial functions, including performing marriages, with impartiality. She must either commit to performing marriages regardless of the couple’s sexual orientation, or cease performing all marriage ceremonies. This does not mean, as the dissent suggests, that no judge can now turn down any request to perform a marriage. What it means is that no judge can turn down a request to perform a marriage for reasons that undermine the integrity of the judiciary by demonstrating a lack of independence and impartiality. This is no different than allowing parties to exercise the right to peremptory challenges of jurors for any reason, while prohibiting them from challenging jurors on the basis of race or gender...

We decline to remove Judge Neely from her position as a municipal court judge; such a punishment would “unnecessarily circumscribe protected expression,” and we are mindful of our goal to narrowly tailor the remedy.

Justice Kautz dissented

This case is of the utmost importance to the State of Wyoming. It is a case confronting new and challenging issues, where the parts of the legal landscape recently changed dramatically and rapidly.16 Contrary to the position asserted by the majority opinion, this case is about religious beliefs and same sex marriage. The issues considered here determine whether there is a religious test for who may serve as a judge in Wyoming. They consider whether a judge may be precluded from one of the functions of office not for her actions, but for her statements about her religious views. The issues determine whether there is room in Wyoming for judges with various religious beliefs. The issues here decide whether Wyoming’s constitutional provisions about freedom of religion and equality of every person can coexist. And, this case determines whether there are job requirements on judges beyond what the legislature has specified...

There is no cause for discipline in this case, nor for concern if Judge Neely is not disciplined or precluded from performing marriages. Same sex couples have full access to marriage, all persons before the courts can be certain of an unbiased and impartial judiciary, and religious individuals can remain in public office even if they hold a traditional religious view of marriage. Judicial positions are filled without either side insisting on a religious test for who may serve. There is room enough in Wyoming for both sides to live according to their respective views of sex, marriage and religion.

I respectfully dissent, and would find that Judge Neely did not violate the Wyoming Code of Judicial Conduct.

Justice Davis joined the dissent.

The judge had sought summary judgment in the judicial misconduct proceeding.

The motion explains comments made to a reporter that had led to the action

On Friday, December 5, 2014, Judge Neely was attempting to hang Christmas lights outside her home. Frustrated with the project, she came inside to untangle a hopelessly intertwined strand of lights. Judge Neely checked her cell phone and saw that she missed a call from an unknown number. She almost immediately returned the call, as is her habit because unknown numbers are often from people attempting to reach her about official town work.

Upon dialing the unknown number, Judge Neely reached Ned Donovan. She identified herself, and Mr. Donovan informed her that he was the person who had called her. He told Judge Neely that he was a reporter for the Pinedale Roundup and asked if she was excited to be able to start performing same-sex marriages. Judge Neely, distracted at the time, struggling to remove her bulky winter clothing and holding an armload of Christmas lights, did not immediately recall Judge Haws's earlier guidance to refrain from commenting on the matter. She reflexively and truthfully answered Mr. Donovan's question, telling him that her religious belief that marriage is the union of one man and one woman precludes her from officiating at same-sex weddings. Mr. Donovan then proceeded to ask Judge Neely more about her personal views regarding marriage.  During the remainder of that call, Judge Neely told Mr. Donovan that other government officials in town were willing to perform same-sex marriages, that she had never been asked to perform one, and that she had never denied anyone anything. (citations to record omitted)

(Mike Frisch)

March 7, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Friday, March 3, 2017

Call Me Your Majesty: Magisterial Judge Suspended Without Pay

The Pennsylvania Court of Judicial Discipline suspended a judge without pay in light of the allegations in a complaint filed in December 2016.

Among the allegations are harassment of a court clerk that persisted in the face of warnings from judicial officers

In 2012, Judge Hladio demonstrated sulking, vindictive behavior toward N.B. when she refused to go out with him or answer his questions about her personal life.

After learning of N.B.'s relationship with another man, Judge Hladio acted in an angry, retaliatory manner toward N.B.

The charge

By his 2010 through April 2014 conduct of persistently inviting N.B. on dates, inquiring about her personal life and showing up at her home uninvited/ despite her rejection of his unwelcome advances and warnings from the President Judge and Court Administration to stop such behavior, Judge Hladio failed to ensure adherence to and compliance with the UJS Policy and failed to ensure that N.B. was treated in a dignified, civil, respectful and non-discriminatory manner. 

He disparaged her even after her reassignment and he had turned his attention to other victims from staff, counsel, defendants and the police.

In sum, a jerk to all regardless of status. 

On February 24, 2016,  Judge Hladio told J.T., a clerk at his district court, that N.B. is not doing her job and cannot follow directions.

On May 6, 2015, Judge Hladio sat at the bench of his courtroom and spoke with L.D.( a court clerk ( criticizing her job performance while a disruptive criminal defendant waited for 40 minutes in the reception area with police officers in attendance.

On May 6, 2015, Judge Hladio told L.D that he was not satisfied with her job performance because she does not make him "number one."

Judge Hladio has repeatedly told L.D. that her first priority is to make him and his needs "number one," and that she is not complying with that directive.

On May 6, 2015, Judge Hladio continued to speak with L.D., criticizing the job performance of Office Manager N.B. while a disruptive criminal defendant waited for 40 minutes in the reception area with police officers in attendance.

On May 6, 2015, Judge Hladio told L.D. that he was displeased with the work performance of J.T., another court clerk, while a disruptive criminal defendant waited for 40 minutes in the reception area with police officers in attendance.

A female prosecutor had the temerity to get the judge reversed on appeal 

Judge Hladio's demeanor and attitude toward ADA Elias changed dramatically after she prevailed on appeal from Judge Hladio's ruling in Commonwealth v. Moore.

Judge Hladio openly exhibits anger and dislike for ADA Elias when she appears before him in Central Court...

Judge Hladio routinely puts ADA Elias's cases at the end of the day when he presides in Central Court which causes police officers, witnesses and other attorneys to experience long delays pertaining to their cases.

 That is a sampling of the complaint that concludes with this contention

Based upon his numerous meetings with President Judge McBride and Court Administration from 2011-2016, Judge Hladio knew that his court clerks had filed complaints with Court Administration about his conduct in district court.

Based on the January 30, 2015 Board Notice of FIJII Investigation (NOFI), the June 23, 2016 Supplemental NOFI, and the March 10, 2015 and October 26, 2016 Board depositions, Judge Hladio knew that his court clerks had cooperated with the Board's investigation of his conduct.

By his December 1, 2014 through 2016 conduct of refusing to speak to N.B. at times, speaking to her in a sarcastic manner at other times, and ignoring her questions about work related matters, Judge Hladio did retaliate, directly or indirectly, against a person known or suspected to have assisted or cooperated with an investigation of a magisterial district judge.

By his December 1, 2014 through 2016 conduct of yelling, acting in an angry manner, and demonstrating sulking and vindictive behavior toward his court clerks, including N.B., Judge Hladio did retaliate, directly or indirectly, against a person known or suspected to have assisted or cooperated with an investigation of a magisterial district judge.

By his December 1, 2014 through 2016 conduct of criticizing the work performance of N.B. when speaking with other court clerks, Judge Hladio did retaliate, directly or indirectly, against a person known or suspected to have assisted or cooperated with an investigation of a magisterial district judge.

By his December 1, 2014 through 2016 conduct of holding back bills that require his approval from N.B., and thereby interfering with her ability to timely perform her job duties, Judge Hladio did retaliate, directly or indirectly, against a person known or suspected to have assisted or cooperated with an investigation of a magisterial district judge.

(Mike Frisch) 

March 3, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, March 2, 2017

Before He Was A Judge

The Florida Supreme Court has suspended a judge for misconduct as an attorney

 This matter is before the Court for review of the determination of the Florida Judicial Qualifications Commission (JQC) that Circuit Judge Andrew J. Decker, III, has violated certain Florida Bar Rules of Professional Conduct before his judicial campaign and the Code of Judicial Conduct during his judicial campaign. We have jurisdiction. See art. V, § 12, Fla. Const. We conclude that, with limited exceptions, the JQC Hearing Panel’s findings are supported by clear and convincing evidence. For the violations in this case, the Hearing Panel recommended a ninety-day suspension, public reprimand, and payment of costs of the proceedings. Article V, section 12(c)(1) of the Florida Constitution provides that this Court "may accept, reject, or modify in whole or in part the findings, conclusions, and recommendations of the commission." We modify in part the  sanction recommended by the Hearing Panel and impose the following discipline on Judge Decker: a six-month suspension, public reprimand, and payment of costs of the proceedings.

 The misconduct

Judge Decker’s misconduct unquestionably warrants the imposition of a serious sanction. In addition to campaign violations, then-attorney Decker (1) violated the Rules of Professional Conduct in failing to advise opposing counsel in the Wells Fargo litigation that he was currently representing the presiding judge in other litigation; (2) violated numerous Rules of Professional Conduct concerning conflict of interest in common representation, including failing to counsel and advise the three clients of the risks and advantages of common representation, failing to withdraw when conflicts were apparent, engaging in representation of one client to the detriment of other current or former clients, reminding opposing counsel in the TD Bank case that even though Judge Bryan was in bankruptcy court, TD Bank could still pursue its claims against Dukes and Woodington; and (3) violated the Rules of Professional Conduct requiring candor to the tribunal by incorrectly stating the status of his representation of Dukes, Woodington, and BWD trust on filings made with the bankruptcy court in Judge Bryan’s case.

When it became apparent numerous times that there was conflict among then-attorney Decker’s clients, then-attorney Decker should have immediately withdrawn from all representation. His inability to understand the serious conflict that existed, and to recognize that conflict when it became apparent on more than one occasion, demonstrates a critical lack of care concerning his clients.

In addition, there were other serious violations of the Rules of Professional Conduct, including then-attorney Decker’s failure to advise opposing counsel in the Wells Fargo case that then-attorney Decker had undertaken representation of Judge Bryan, the presiding judge in the Wells Fargo case. All the violations established by the evidence in this case demonstrate a pattern of poor judgment, and lack of concern for jointly represented clients and for other counsel and their clients. Judge Decker violated numerous Rules of Professional Conduct and Canons of Judicial Conduct, as well as a state statute, and has "exhibited a pattern of behavior that evidences a lack of ethical judgment, along with a lack of understanding and concomitant contrition about the harm caused to his clients and to the public’s trust in the legal system," as the Hearing Panel found. The Hearing Panel was also concerned, as are we, by the fact that Judge Decker was reprimanded by The Florida Bar in the past. This prior discipline, along with the numerous violations proven in this case, demonstrate that Judge Decker "evinces a lack of ability to identify situations that lead to the appearance of impropriety."

However, no evidence suggests that any of Judge Decker’s misconduct in the practice of law caused significant harm to a client or another party. Significant harm is, of course, not necessary to establish an ethical violation. But the absence of such harm is a relevant consideration in determining the appropriate sanction to be imposed. Similarly, simple errors should be treated less severely than willful misrepresentations. So Judge Decker’s culpability for bankruptcy court filings containing misstatements is certainly diminished by the fact that the misstatements were inadvertent.

A concurring opinion would find that a charge of unauthorized communication that the court majority rejected had been proven. (Mike Frisch) 

March 2, 2017 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, February 22, 2017

"99%...Pure Bullshit"

In a matter involving allegations of misconduct against a sitting judge, the Maryland Court of Appeals directed that the Commission on Judicial Disabilities file the record of proceedings leading to a reprimand for the court's limited review

The Commission has the power to reprimand a judge, which it had exercised in the matter.

The court

In this case, we must decide – initially – whether there is any mechanism for this Court to review the fundamental fairness of a proceeding conducted by the Commission on Judicial Disabilities (“Commission”) when the Commission disciplines a judge in the sole manner in which the Constitution authorizes it to do without referring the matter to this Court. We hold that there is such a mechanism – the common law writ of mandamus. Our review in this particular case awaits the provision by the Commission of the record of its proceedings.

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.

The judge sought review

The immediate question before us is whether there is any mechanism for us to review Commission proceedings when the Commission determines that a reprimand is the appropriate discipline – a form of discipline that the Constitution authorizes the Commission to impose on its own without referring the matter to us. We hold that there is no constitutional or statutory basis for this Court to exercise appellate jurisdiction to review the Commission’s proceedings. We do have original jurisdiction, however, to conduct a limited review, pursuant to a common law writ of mandamus, of Judge White’s claims that the Commission abused its discretion and deprived her of the procedural due process guaranteed by the State Constitution and Maryland Rules. In order to conduct that review, we direct the Commission to file the record of its proceedings with us. To the extent that Judge White asks for review of matters that preceded the filing of charges, she must submit a written waiver of confidentiality to the Commission.

The court held that an accused judge is entitled to due process but

Our review under a writ of mandamus, however, is limited. The Constitution and our rules provide for the Commission to issue a reprimand without approval or review by this Court. The Commission’s decision to issue a public reprimand is properly classified as a non-ministerial discretionary act that is dependent upon the judgment of the Commission members. Once the Commission has provided an accused judge with the requisite due process, it is entrusted to the Commission’s discretion whether to dismiss the charges, reprimand the judge, or recommend other discipline to us. Thus, a writ of mandamus is not available to review a claim that the Commission erred in concluding that a judge committed sanctionable conduct or in its judgment to reprimand the judge as a result of that conclusion...

In order to carry out the review of Commission proceedings for which we have jurisdiction, we direct the Commission to file the record of the proceedings concerning its charges against Judge White, including that part of its record relating to the pre-charging period for which Judge White waives confidentiality. Once the record has been filed with the Court, the parties shall submit additional briefs and an appropriate record extract, according to a schedule set forth by future order of the Court. Such briefing shall be limited to the question of whether the Commission proceedings failed to comply with the Constitution and Maryland Rules and, if so, whether any such failure affected the fundamental fairness of the proceeding.

The charges filed against the judge are linked here.

The oral argument before the Court of Appeals is linked here.

The judge's alma mater Washington & Lee noted that she was named Maryland Judge of the Year in 2014. (Mike Frisch)

February 22, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, February 21, 2017

Senior Judge Reprimanded For OWI

The Indiana Supreme Court has reprimanded a senior judge

In lieu of Respondent tendering a written response to the charges, the parties jointly tendered a “Statement of Circumstances and Conditional Agreement for Discipline” in which the parties have stipulated to the following facts. On the night of Saturday, October 1, 2016, a Porter County Sheriff’s Department deputy responded to 911 calls from two different individuals about a southbound vehicle periodically veering into northbound traffic on Indiana State Road 149 in Porter County. The deputy observed a vehicle matching the description provided by one of the 911 callers driving slowly on State Road 149 in the area of C.R. 550 North. After stopping Respondent’s vehicle and approaching Respondent, the deputy noticed an odor of alcohol on Respondent’s breath and person. Respondent’s speech was slurred, his eyes were watery, his manual dexterity was poor, and his balance was unsteady. He failed at least three field sobriety tests, and when he consented to a preliminary breath test, the result was .20 BAC. He then voluntarily gave a blood sample at Valparaiso Medical Center in Lake County. 

He pled guilty to charges of operating while intoxicated

Respondent and the Commission agree that by being arrested and convicted for Operating a Motor Vehicle While Intoxicated, Respondent violated Code of Judicial Conduct Rule 1.1 requiring judges to comply with the law, and Rule 1.2 requiring judges to avoid impropriety and to act at all times in a manner that promotes public confidence in the integrity of the judiciary.

The parties cite no facts in aggravation. In mitigation, they agree that Respondent immediately self-reported his misconduct and voluntarily contacted the Judges and Lawyers Assistance Program (JLAP); that he is compliant with all JLAP requests; that he has been fully cooperative with the Commission throughout its investigation; and that he is remorseful for his conduct. They also agree that under the circumstances, the appropriate sanction is a public reprimand. The Court agrees with the parties.

(Mike Frisch)

February 21, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Friday, February 17, 2017

Montana Need Not Pay Court Reporter Harassed By Judge

The State of Montana was not liable based on a stipulated judgment between a judge and his harassed court reporter, according to a decision of the Montana Supreme Court.

The facts found by the District Court for purposes of this declaratory action are as follows. In 1991, Berdahl began working as a court reporter for the Sixteenth Judicial District Court, in Forsyth. In November 2012, George Huss was elected as a district court judge in the Sixteenth Judicial District. Huss oversaw Department Two of the District and Berdahl worked directly for Huss as his primary court reporter. In this capacity, Berdahl worked closely with Huss and often traveled with him to locations within the District for official court business.

In February 2014, Berdahl filed a sexual harassment complaint against Huss with the Montana Human Rights Bureau (HRB). Berdahl alleged that Huss, during work time, had made various declarations of romantic interest, love, and undying devotion to her, which Berdahl resisted. Berdahl stated that Huss bought her gifts, offered to make her dinner while his wife was out of town, and expressed his desire to kiss and hug her. Berdahl alleged that Huss retaliated against her in the workplace when she resisted his overtures. Berdahl’s detailed complaint set forth numerous further allegations about Huss’s behavior, some of which was delineated by the District Court.

The judge sought defense and indemnification by the State to no avail and

Berdahl and Huss mediated on September 3, 2014, and although they did not reach a settlement that day, they continued to negotiate and, on September 30, 2014, entered into a “Stipulation and Confession of Judgment Resulting from the State of Montana’s Refusal to Defend and Indemnify.” In this agreement, Huss confessed to judgment in Berdahl’s favor in the amount of $744,371. He assigned his rights against the State to Berdahl and agreed to “cooperate in jointly requesting entry of this Judgment by any tribunal having jurisdiction.” Berdahl agreed not to seek execution of the judgment against Huss.

Berdahl then sought payment from the State

We affirm the District Court’s determination that the State was not obligated to pay the stipulated judgment entered by Berdahl and Huss. Consequently, it is unnecessary to address the issue of whether Huss’s actions came within the course and scope of his employment. Finally, as the District Court correctly noted, Berdahl may pursue relief before the HRB, where the administrative proceeding on her complaint is currently stayed.

(Mike Frisch)

February 17, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Friday, February 10, 2017

"Beer With Obama" Judge Suspended In West Virginia

The West Virginia Supreme Court of Appeals (reconstituted due to multiple recusals) has suspended a recently-elected judge for his false campaign flyer

Judge-Elect Callaghan approved a direct-mail flyer created by Mr. Heflin emblazoned with “photoshopped”  photographs of President Obama and Judge Johnson, along with the caption “Barack Obama & Gary Johnson Party at the White House . . . .” President Obama is depicted holding what appears to be an alcoholic beverage and party streamers form the background of the photographs...

Distilled to its essence, the ultimate question presented to this Court is whether the flyer is “false” and therefore stripped of First Amendment protection, or, as Judge-Elect Callaghan insists, merely the juxtaposition of two attenuated occurrences— coal job losses in Nicholas County and Judge Johnson’s attendance at a federal seminar in Washington, which was “hyperbolized” as “partying” at the White House. We conclude that the “gist” of the subject flyer conveys that Judge Johnson “partied with Obama” at his personal invitation and is therefore simply too far afield from the truth to be considered protected, hyperbolic free speech; it is, in every sense, materially false. Judge Johnson attended a federally-required meeting and conference in furtherance of his service to the State, which meeting and conference was utterly devoid of any meaningful connection to or interaction with the President. Judge Johnson’s attendance at the meeting and conference is exaggerated, repurposed and mischaracterized to the point that it is rendered patently untrue. When viewed in its entirety as instructed by various courts, we have little difficulty finding that the subject flyer contains knowingly, materially false statements in violation of the Code of Judicial Conduct and the Rules of Professional Conduct.

We therefore conclude that the First Amendment does not serve to shield Judge-Elect Callaghan from discipline as a result of the subject flyer. We further conclude, as did the Board, that the subject flyer contains a knowingly false statement and that Judge-Elect Callaghan’s actions in approving and disseminating the flyer are therefore violative of Rule 4.1(A)(9), Rule 4.2(A)(1), Rule 4.2(A)(4) of the Code of Judicial Conduct and Rule 8.2(a) of the West Virginia Rules of Professional Conduct.

Majority on sanction

With regard to his attempts at corrective measures and his level of regret, however, we find that although he removed the false assertions from his personal and campaign Facebook pages and ran radio advertisements ostensibly retracting the assertions contained in the flyer, the calculated and intentional timing of his mailings rendered it virtually impossible to engage in meaningful mitigation. As Judge Johnson testified, time constraints prevented him from taking meaningful action in response to the distribution of the flyer.  Nicholas County’s only newspaper was a weekly paper, and the timing of the mailing prevented inclusion of any response or countermeasure in that paper.  Thus, we find that the removal of the assertions from social media and the radio statements are entitled to limited weight in mitigation...

Judge-Elect Callaghan’s subsequent statements during his testimony continued to reveal a dismissive and cavalier attitude toward his behavior. He stated, “If I had to do it again, I probably would not approve the flier going out just because it’s not enjoyable - politics is not enjoyable in a lot of different ways, but when you cause outrage in somebody, that, I regret.” Moreover, his written response to the initial complaint disingenuously urges that “[s]ome members of the public may have been duly impressed by the fact that Judge Johnson was honored by the White House for the good works he had performed[.]” He further suggested that Judge Johnson could have “easily . . . boycotted this meeting, based upon his disagreement with President Obama’s policies, and he could have publicized such a boycott for political purposes.” In his testimony before the Board, Judge-Elect Callaghan minimized his conduct...

There is an opinion concurring in part by Judge Matish

The majority considers the recommendation of the Judicial Hearing Board of two concurrent one-year periods of suspension without pay to be too lenient, instead ordering two consecutive one-year suspensions without pay be imposed, plus a $15,000 fine, costs, and a public reprimand. While I concur with the majority’s reasoning as to the seriousness of this matter, I respectfully disagree as to the length of the suspension. The entire circumstance merits additional charges and punishment because, after reviewing the record presented and hearing oral argument, it is my opinion that the punishment is still not severe enough, because of the numerous violations that occurred with the so-called Obama flyer alone.

...the majority could have just as easily found violations for each untruthful statement of the so-called “Obama flyer,” which included: (1) the photoshopped pictures of President Obama and Judge Gary Johnson with the beer, since there was no party attended with President Obama where alcohol was served; (2) that Judge Johnson was not invited by the President; (3) that President Obama was not even present;( 4 ) that Judge Johnson did not go to the White House; and (5) none of this had anything to do with Judge Johnson defending jobs in Nicholas County. Each of these violations, having occurred in the so-called “Obama flyer” that was mailed to the voters and having been placed upon two separate Facebook posts, would amount to a multiplier of, at a minimum, three separate postings or publications, for a minimum of fifteen violations, in and of itself, justifying as much as a fifteen-year suspension. 

...As a country, we have gone far astray from what is right and what is good. We have become the most connected nation with our cell phones, smart phones, tablets, computers, and social media, while simultaneously becoming the most disconnected nation because of our cell phones, smart phones, tablets, computers, and social media. In trying to one up the next guy at his expense, we fail to realize that we harm ourselves in the process. Once you hit “Send,” it is out there forever, and you cannot take it back.

As a judge or judicial candidate, you are expected to have a standard to live up to, not only in your personal life and how you conduct yourself on the bench, but how you run a campaign to secure the trust of the public in voting to elect you. It is disturbing to me that Judge-elect Callaghan admitted to reading the Code of Judicial Conduct when he decided to run. However, the Code of Judicial Conduct was later changed and adopted December 1, 2015, yet Judge-elect Callaghan, in his testimony, never admitted to stating specifically that he read the new Code of Judicial Conduct nor talked about any Code of Judicial Conduct to the media company he hired. Also, the media company admitted to not having talked with Judge-elect Callaghan about it either. 

The falsity used by Judge-elect Callaghan in his campaign perpetrated a fraud upon the voters of Nicholas County, the 28th Judicial Circuit. By his own actions, he has shown that he is unfit to hold a judicial office, and, at the appropriate time, a new election should be held.

Judge-elect Callaghan may very well have won the election fair and square based upon other factors in Nicholas County, or the fact he pointed to in one of his other flyers that after a certain amount of time, things need changed, but instead he resorted to certain falsities, which definitely are not to be tolerated in a judicial election. We may now live in a world of “fake news” and “alternate facts,” but if we cannot trust, honor, and respect our Judges and Justices, who can we trust?

Since Judge-elect Callaghan was first an attorney running for a judicial office, I would give him a one-year suspension as an attorney, followed by a year for each violation of the Code of Judicial Conduct, for a total suspension of four years. However, the possibility exists under the facts of this case that the suspension could be for much longer, as stated above. Therefore, I respectfully dissent as to the length of punishment, and would order Judge-elect Callaghan to serve four one-year consecutive periods of suspension from the bench, without pay, in addition to the fines and costs imposed by the majority. 

MetroNews - the voice of West Virginia - has the story and the flyer. (Mike Frisch)

February 10, 2017 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Monday, February 6, 2017

Recusal Denied

A claim of an improper ex parte Christmas party encounter did not establish sufficient bias for recusal in heated litigation, according to a decision of the Tennessee Court of Appeals. 

The allegation surfaced in this billing notation

11/21/14   At Schell & Davies law firm party in Franklin with Trevor. Meet Judges Woodruff and Binkley and others. Meet Virginia Story and discuss case.  1.50

From the judge's affidavit

I recall being at a Christmas party at Schell & Davies law firm in Franklin, Tennessee, at the end of the month in November 2014. I barely remember saying “hello” to Mr. Harris, Judge Woodruff, and Mrs. Story, attorney for [Mr. Nesmith], but I would not, certainly, under any circumstances, discuss with any attorney or party to a lawsuit, the facts of a case or even bring up the case itself for any reason whatsoever. I never had an ex parte communication with Mrs. Story or Mr. Harris regarding any case, much less the present case, at the Christmas party mentioned above on or about November 21, 2014.

The court

Other than the vague notation that counsel for a party in the circuit court action “met” Judge Binkley at a holiday party, there is simply no indication that any of the merits of the case were discussed or that the interaction was anything more than passing social contact. “The mere existence of a friendship between a judge and an attorney is not sufficient, standing alone, to mandate recusal.”

Nor did delay or a heating courtroom exchange establish bias for recusal

We cannot deny that we are troubled by the events in this case, including the trial court's repeated delay in disposing of motions and its clear violation of section 1.02 of Rule 10B. Moreover, we are particularly concerned with Mr. Nesmith's action in filing affidavits from court staff in support of his characterization of the May 20, 2016 hearing. Again, however, the court staff‟s characterizations of the events of May 20, 2016 appear to stem directly “from events occur[r]ing in the course of the litigation,” rather than any extrajudicial knowledge. Accordingly, we reiterate that for any bias on the part of the trial judge and his staff to necessitate recusal, it must be so pervasive as to deny Appellants the right to a fair trial. 

We have thoroughly reviewed the record in this case and conclude that Appellants have failed to meet their burden to show a bias so pervasive that it denies them their right to a fair trial. The record on appeal contains no indication that Judge Binkley has prejudged any of the issues in this case in favor of one party, despite the contentiousness of the proceedings among all participants. We agree that Judge Binkley did enter into a heated exchange with Appellants and their children at the May 20, 2016 hearing and was overly candid in his remarks regarding the presence of the children; however, Appellants have failed to show that this exchange, viewed in isolation, or in conjunction with the trial judge‟s multiple adverse rulings and delays, is evidence of a bias “so pervasive that it is sufficient to deny [Appellants] a fair trial,” see id., or that shows that Judge Binkley has an “utter incapacity to be fair.” Groves, 2016 WL 5181687, at *5. Accordingly, Judge Binkley did not err in denying Appellants' recusal motions.

(Mike Frisch)

February 6, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, January 24, 2017

The Art Of Judging

 A new judicial ethics opinion from South Carolina reaches an unsurprising result:

                                         ADVISORY COMMITTEE ON STANDARDS OF JUDICIAL CONDUCT

                                                                                OPINION NO. 2 - 2017

RE: Propriety of the Magistrate’s Court placing artwork for sale in the courthouse and also posting advertisements for local restaurants or other vendors.

                                                                                          FACTS

A magistrate judge inquires as to the propriety of placing artwork for sale in the courthouse and also posting advertisements for local restaurants or other vendors. The court utilizes electronic court boards for legal notices and it has been proposed that these electronic boards also include the advertisements.

                                                                                     CONCLUSION

The Magistrate’s Court should not place artwork for sale in the courthouse or post advertisements for local restaurants or other vendors.

                                                                                       DISCUSSION

Canon 2B states that a judge “shall not lend the prestige of judicial office to advance the private interest of the judge or others[.]” By placing artwork for sale in the courthouse, the magistrate would appear to be advancing the private interests of the artists whose works are displayed. Likewise, if advertisements for local restaurants and other businesses were displayed in the Magistrate’s Court or on the magistrate electronic boards for legal notices, the magistrate’s court could appear to be advancing the private interests of those businesses.  Thus, the magistrate cannot place artwork for sale in the courthouse or also post advertisements for local restaurants or other vendors without violating the Code of Judicial Conduct.

(Mike Frisch)

January 24, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Monday, January 23, 2017

Here Comes the Sun

A deferred disciplinary agreement has been entered into between an investigative panel of the Tennessee Board of Judicial Conduct and a General Sessions Court  judge.

The agreement places the judge on probation for three years.

The judge had been the subject of criminal charges that were dismissed, as reported by the Knoxville News Sentinel

A senior judge threw out all charges Wednesday against a Campbell County judge accused of official misconduct.

"Judge Sammons, this case is dismissed. You are free to go," Senior Judge Paul Summers told Campbell County General Sessions Court Judge Amanda Sammons.

Sammons has been on trial this week on two counts of official misconduct. She was accused of changing without authority a charge against a LaFollette mother and setting a $250,000 bond without any legal basis in an incident in January. Sammons contends she mistook the case for another more serious offense but denied she actually ordered the charge changed.

Summers ruled that after a day of testimony the state had failed to present enough proof of the crime of official misconduct for the jury to even consider the case.

The agreement entered into here notes that the judge is now "more reflective and less hasty and impatient in her judicial decisionmaking." 

Attached to the agreement is a letter from the judge in which she notes the dramatic impact of her own experience as a criminal defendant on her approach to judging as it was a "life changing" experience.

As it has played out since many of these complaints were filed, although ours is a very small town with only a handful of licensed attorneys. a large number of them in recent months and years have not only been disbarred but have gone to federal prison, have been brought up on charges of severe embezzlement, and have faced serious discipline and suspension.

The "proven fact" set forth above had led the judge to assume judicial office as the "remedy."

But there is light ahead

you will see that hostility has been eviscerated. Generations of coldness have melted away and a new day is springing forth out of the ground.

The agreement resolves a number of complaints.

For example, the judge had set a $250,000 bond in a case where what she thought involved aggravated child abuse turned out to be a failure to restrain a child with a seat belt. The defendant was held for two days until the matter was straightened out. (Mike Frisch)

January 23, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Calling Broderick Crawford

The South Carolina Advisory Committee on Judicial Conduct has opined that a magistrate judge is not disqualified under these circumstances

A magistrate judge is married to a state highway patrol officer who works in the same county as the magistrate’s court. The highway patrol officer is not a supervisor. The magistrate would not hear any cases in which the magistrate's spouse is the case agent or a witness. However, the judge inquires as to whether there is any impropriety with hearing cases involving other members of the highway patrol.

Reasoning

the Committee is of the opinion that the judge may continue to preside over tickets/matters involving the state highway patrol even though the judge is married to a member of the state highway patrol. Of course, the judge may not preside in any matter in which the judge’s spouse is a witness or the case agent.

However, if a party seeks disqualification of the judge based on the judge’s spousal relationship with a member of the highway patrol, the judge must consider whether presiding over the case individually involving the highway patrol would create the appearance of impropriety. If the recusals or requests for disqualification create an administrative burden such that the judge is unable to properly perform judicial duties, then the judge should no longer remain on the bench.

(Mike Frisch)

January 23, 2017 in Judicial Ethics and the Courts | Permalink | Comments (1)

Friday, January 13, 2017

Town Court Justice Admonished For Facebook Post

A non-attorney town court justice has been admonished for misconduct by the New York Commission on Judicial Conduct

from March 13, 2016 to March 28, 2016, with respect to People v David VanArnam, a matter then pending in the Canton Town Court, St. Lawrence County, respondent made public comments on her Facebook account about the pending proceeding and failed to delete public comments about the pending proceeding made by a Morristown Town Court clerk...

In March 2016, respondent maintained a Facebook account under the name "Lisa Brown Whitmarsh." Respondent had approximately 352 Facebook "friends." Respondent's Facebook account privacy settings were set to "Public," meaning that any internet user, with or without a Facebook account, could view content posted on her Facebook page.

On March 13, 2016, respondent posted a comment to her publicly viewable Facebook account, as shown on Exhibit A to the Agreed Statement of Facts, criticizing the investigation and prosecution of Mr. VanArnam. Respondent commented, inter alia, that she felt "disgust for a select few," that Mr. VanArnam had been charged with a felony rather than a misdemeanor because of a "personal vendetta," that the investigation was the product of "CORRUPTION" caused by "personal friends calling inpersonal favors," and that Mr. VanArnam had "[a]bsolutely" no criminal intent.

Several friends "liked" the post.

clicking the "like" button is a way for Facebook users to indicate that they "enjoy" a post.

But someone else did not enjoy it.

On March 23, 2016, a local news outlet posted an article on its website reporting on respondent's Facebook comments concerning the VanArnam case and re-printed respondent's Facebook post of March 13, 2016, in its entirety.

On March 28, 2016, respondent removed all postings concerning the VanArnam matter from her Facebook page after receiving a letter from District Attorney Rain questioning the propriety of her comments and requesting her recusal from all matters involving the District Attorney's office.

She agreed to recusal and to refrain from further posts on judicial matters.

The commission

Comments posted on Facebook are clearly public, regardless of whether they are intended to  be viewable by anyone with an internet connection or by a more limited audience of the user's Face book "friends." Even such a "limited" audience, we note, can be substantial, and to the extent that such postings can be captured or shared by others who have the ability to see them, they cannot be viewed as private in any meaningful sense. Accordingly, a judge who uses Facebook or any other online social network "should ... recognize the public nature of anything he/she places on a social network page and tailor any postings accordingly" (Adv Op 08-176)...

The Advisory Committee on Judicial Ethics has cautioned judges about the public nature and potential perils of social networks and has advised that judges who use such forums must exercise "an appropriate level of prudence, discretion and decorum" so as to ensure that their conduct is consistent with their ethical responsibilities (Adv Op 08- 176). Further, since the technology behind social media can change rapidly and unpredictably, it is essential that judges who use such forums "stay abreast of new features of and changes to any social networks they use" since such developments may impact the judge's duties under the Rules (Id).

These are excellent guidelines for any judge who joins and uses an online social network. At a minimum, judges who do so must exercise caution and common sense in order to avoid ethical missteps.

The agreed statement of facts is linked here. (Mike Frisch)

January 13, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, January 11, 2017

Judge Suspended For Misconduct

The Missouri Supreme Court has suspended a judge for six months without pay for misconduct relating to her dealings with the public defender

Having reviewed the evidence before the Commission, it is clear that Respondent intentionally delayed the appointment of public defenders to subvert the rights of indigent defendants. She did this, ostensibly, because of a disagreement over whether the public defender’s office could enter an appearance for an indigent defendant in probation violation cases.

Interfering with the administration of justice, as in this case, undermines the “public confidence in the independence, integrity, and impartiality of the judiciary,” to say nothing of the lack of promptness, efficiency or fairness to a defendant’s right to be heard. What is more, the impact of Respondent’s misconduct operated to prejudice indigent defendants who were confined and awaiting appointment of counsel. Their right to be heard according to law was delayed. Finally, Respondent’s threats of filing disciplinary complaints against counsel, and ultimately filing a disciplinary complaint in retaliation for a judicial complaint filed by the director of the public defender’s office, violates the Code of Judicial Conduct and constitutes misconduct. Even if it was not in retaliation, as Respondent claimed, it was inconsistent with the propriety with which a judge should act.

Judge Wilson concurred

I write to emphasize the fact that Respondent was correct (in part) in her reading of this statute does nothing to excuse or mitigate the seriousness of her misconduct. Judges are neutral arbiters of the disputes that come before them. Here, time after time, Respondent let her view of the Public Defender’s authority – which authority was invoked by the defendant and never questioned by the state – outweigh her judicial obligation to maintain both the fact and the appearance of objectivity and impartiality in adjudicating the cases before her. And Respondent’s misconduct did not stop there. In the course of her dispute with the Public Defender, Respondent purposely and repeatedly sacrificed the rights of some defendants in probation violation cases to the statutory interpretation point she felt compelled to make to the Public Defender generally. Time and again, defendants who would have been entitled to representation by the Public Defender were denied that representation for some period because Respondent refused to make a timely determination of whether, under the circumstances, counsel was necessary to protect each defendant’s due process rights.

It is difficult to imagine a reasonable justification for not taking up and deciding this question during a defendant’s first appearance before the court, particularly if the defendant is incarcerated. Of course, an isolated failure to do so would not raise a question of judicial misconduct for the Commission and this Court, but would simply be a matter for ordinary review – and, if error, correction – by a higher court. Respondent’s conduct, however, was no isolated incident.

(Mike Frisch)

January 11, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, January 10, 2017

Craven County

The North Carolina Supreme Court publicly reprimanded a judge who had failed to disclose outside income and engaged in misconduct in a matter where he initiated criminal charges against a tenant to whom he had rented

On 3 May 2013, Respondent sought criminal charges against the former tenant and a criminal summons was issued for injury to real property. On the criminal summons, Respondent is listed as the complainant and his address is listed as 300 Broad St., New Bern, NC 28560, the address of the Craven County Courthouse.

The former tenant’s criminal charge, Craven County File No. 13CR51808, was first set for 30 May 2013. The criminal case was continued a number of times and remained pending for over a year for various reasons. The former tenant had difficulty finding a defense attorney to represent him when Respondent was the prosecuting witness. Eventually, the former tenant applied for a court-appointed attorney and an Assistant Public Defender from outside Respondent’s judicial district was assigned by the Office of Indigent Defense Services.

In an effort to bring all the parties together to settle the criminal matter, the Assistant District Attorney (ADA) assigned to prosecute the former tenant’s charge calendared the matter in Respondent’s courtroom. Respondent did not set the case on his own calendar or exercise undue judicial authority to have the former tenant’s charge heard in his court.

On 25 April 2014, Respondent presided over Criminal District Court in Craven County, and Craven County File No. 13CR51808 appeared on line number 28 of that court calendar, with Respondent’s name listed as the complainant.

During the 25 April 2014 court session, Respondent provided the ADA with photographs of the damaged rental property, which were also shared with the Assistant Public Defender, who then consulted with the former tenant. The parties reached an agreement that Respondent and the ADA would not pursue the criminal charge against the former tenant if he paid Respondent restitution for the property damages. This is a common means of resolution in similar criminal cases in Craven County. All parties agreed on the amount of restitution and the case was continued to allow the former tenant time to raise the necessary funds to pay Respondent.

On 18 July 2014, the ADA again scheduled Craven County File No. 13CR51808 on Respondent’s docket, and the case appeared on line number 18 of the court calendar, with Respondent’s name listed as the complainant. During this court session, Respondent recessed court and was joined in an office behind the courtroom by the ADA and the former tenant. The Assistant Public Defender representing the former tenant was not present as per an agreement with the ADA. During this meeting, Respondent left the office temporarily, and when he returned, the ADA had received $3000 in cash as restitution from the former tenant, and the ADA handed it to Respondent. After restitution was made to Respondent, the ADA filled out a form dismissing the criminal charge against the former tenant. There is no dispute that Respondent was entitled to the restitution from the former tenant.

The court

As the presiding judge in criminal district court on 25 April 2014 and 18 July 2014, it was incumbent upon Respondent to independently evaluate the propriety of his personal criminal matter being calendared before him as presiding judge, and further, to recognize the obvious conflict of interest and the potential for public concern as to his influence over the outcome of a matter in which he had a personal financial interest. As a criminal complainant, it was also incumbent upon Respondent to maintain a clear separation of his personal life from his judicial duties, including ensuring that his personal address rather than the Craven County Courthouse address was indicated as his address on the criminal summons, and settling and accepting cash restitution at a time when he was not also exercising his judicial duties as presiding judge.

The court cited the judge's disclosure compliance, many positive attributes and noted that he got the message on the intersection between his role as landlord and judge

Respondent has already shown initiative to comply with the Code by recusing himself when the former tenant obtained a new unrelated criminal charge which was scheduled before Respondent. When Respondent realized the matter was on his calendar, he properly recused himself.

(Mike Frisch)

January 10, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Friday, January 6, 2017

One Reprimand Is Enough

A judge who was reprimanded for improper conduct as a judge is not subject to bar discipline for the same conduct, according to a recent opinion of the North Carolina Supreme Court

The State Bar asserts that a judge is still a lawyer after taking office and therefore, must comply with both the Code of Judicial Conduct and the Rules of Professional Conduct as required by section 84-28.6 Therefore, the State Bar contends that the DHC may discipline a sitting judge because “[j]udicial discipline concerns the fitness of a judge to serve as a judge. Attorney discipline concerns the fitness of a lawyer to be a lawyer. The same conduct may implicate both fitness to be a judge and fitness to be a lawyer.” We agree that a judge’s conduct may affect his or her fitness to be a lawyer. In Badgett III the DHC disbarred the defendant once he was removed from judicial office; however, while a judge remains in office, only this Court or the JSC may impose discipline for his or her conduct as a judge.

In the present case defendant was a member of the General Court of Justice when he engaged in the misconduct set forth above. As a result, he was investigated and disciplined by the JSC pursuant to sections 7A-376 and 7A-377. Having accepted the JSC’s public reprimand, defendant remains a sitting member of the General Court of Justice. Based upon the history and language of Article 30 of Chapter 7A of the General Statutes, we conclude that jurisdiction to discipline sitting judges for their conduct while in office rests solely with the JSC and this Court, and not with the DHC.7 Consequently, we hold that the DHC does not have jurisdiction to discipline defendant as a sitting member of the General Court of Justice for his conduct while a member of the General Court of Justice. Accordingly, we reverse the DHC’s denial of defendant’s motion to dismiss the State Bar’s complaint against him and remand this case to the DHC with instructions to dismiss with prejudice the State Bar’s complaint.

The case involved dealings with the Kill Devil Hills police. 

Chief Justice Martin wrote a lengthy concurring opinion. Justice Ervin wrote and concurred in the result. 

Hat tip to the ABA Journal. (Mike Frisch)

January 6, 2017 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Monday, January 2, 2017

Suspension Proposed For Judge Who Sexually Harassed Employee: Drafted Recommendation Letter That Said She Was "Sexy As Hell"

The Michigan Judicial Tenure Commission has proposed a censure and suspension of 60 days without pay of a probate judge who had sexually harassed his judicial secretary over a three-year period from 2012 to 2015. 

The misconduct consisted of, among other things, a series of text messages where he complained about the state of his marriage and unaccepted invites to a Rihanna/Eminem concert and to travel to "exotic locations for court-related conferences" where they would share accomodations. 

He showed her a "sexually suggestive Youtube video of a high-priced lingerie website Agent Provocateur."

He also drafted a letter of recommendation on her behalf that advised potential employers that she was "sexy as hell." 

That language was deleted at the secretary's request. 

The judge self-reported the misconduct to the commission after reaching a civil settlement with the secretary.

Matt Durr at MichiganLive reported the story

Between 2012 and 2015, Iddings sent after-hours text messages to the woman about his marital problems and personal feelings, invited the woman to accompany him to court-related conferences where they would share a hotel room and shared a video with her about a lingerie website.

...the secretary filed a complaint against Iddings and in June a settlement was agreed upon and the secretary received an undisclosed amount of money. At that time Iddings then self-reported himself the judiciary committee for review.

The commission also recommends that the judge take a course in Texas called Maintaining Proper Boundaries.

Details from Lenconnect's David Panian.

The Peninsula had the story in October 2016 of the judge's reappointment by Governor Snyder to the Commission on Community Action and Economic Opportunity

The CCAEO is a 12-member commission created to reduce the causes, conditions and effects of statewide poverty in Michigan. The CCAEO also promotes social and economic opportunities in Michigan, and seeks to enable self-sufficiency for lower-income residents in the state.

“I thank Judge Iddings for his continued service on this commission and I am confident he will provide thoughtful input to assist low-income Michiganders,” Snyder said.

(Mike Frisch)

January 2, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, December 28, 2016

Out On Strikes

A new opinion from the Florida Judicial Ethics Advisory Committee

Opinion Number: 2016-22
Date of Issue: December 12, 2016

ISSUE

Whether a senior judge may work part time for an insurance adjusting company as an insurance umpire in any circuit in which the senior judge may preside.

ANSWER: No.

FACTS

The inquiring judge will be taking senior judge status in January of 2017, and is considering part time employment with an insurance adjusting company as an “insurance umpire.”  The inquiring judge states that the office the judge would work for is located in one county, but performs work in many other counties, and specifically asks whether it is permissible to work as an insurance umpire in any county in which the inquiring judge serves as a senior judge.

DISCUSSION

Senior judges subject to recall must comply with all provisions of the Code of Judicial Conduct, with limited exceptions. See Fla. Code Jud. Conduct, Application (stating that a senior judge “shall comply with all the provisions of this Code except Sections 5C(2), 5E, 5F(1), and 6A”); Fla. JEAC Op. 06-02. To that end, Florida Code of Judicial Conduct, Canon 5G provides that “[a] judge shall not practice law,” and Canon 5D(3) states that a judge “shall not serve as an officer, director, manager, general partner, advisor or employee of any business entity.”  Indeed, the restrictions contained in Canon 5D(3) are “one of the few per se proscriptions on lawful off-the-bench activities to be found in the Code.”  Fla. JEAC Op. 97-35. See also Fla. JEAC Op. 16-12.

Subject to clear restrictions and disclosure requirements, the Code does permit senior judges to engage in certain dual service roles, such as mediator, arbitrator, or voluntary trial resolution judge. Although the Florida Statutes do not contain a definition for “insurance umpire,” an umpire is sometimes judicially appointed and other times appointed by appraisers pursuant to the terms of an insurance policy during the appraisal process of a property insurance dispute. Unless the role of insurance umpire is sufficiently equivalent to that of a certified mediator, arbitrator, or voluntary trial resolution judge, employment would be prohibited by the Code and the inquiring judge may not engage in part time employment as an insurance umpire.

As noted, the Code permits senior judges to engage in certain dual services, in the role of mediator, arbitrator, and voluntary trial resolution judge, outside of any circuit in which the senior judge serves as a senior judge. See Fla. Code Jud. Conduct, Canon 5F(2); Fla. JEAC Op. 15-15. Even if the role of insurance umpire was substantially similar to those permitted dual service roles, the inquiring senior judge would be subject to the same restrictions and disclosure requirements set forth in the Code. Among other restrictions, senior judges providing a dual service, such as mediation, through an entity may only be associated with entities that are solely engaged in offering mediation or other alternative dispute resolution services. Fla. Code Jud. Conduct, Canon 5F(2). Here, the inquiring judge anticipates providing the insurance umpire services while affiliated with a company that describes itself as an all-line insurance adjusting service company that offers services such as claims adjusting, appraisals, scene investigations, umpire services, and mediation. Because that entity is not solely engaged in offering alternative dispute resolution services, the senior judge may not be affiliated with that company while providing any dual services if also serving as a senior judge.

Regardless of entity affiliation, a senior judge is prohibited from providing any dual services within any circuit in which the senior judge serves as a senior judge. In Opinion 16-18, we concluded that a senior judge serving as a court appointed, litigant-paid special master would be subject to the same geographical restriction. “A senior judge shall disclose if the judge is being utilized or has been utilized as a mediator, arbitrator, or voluntary trial resolution judge by any party, attorney, or law firm involved in the case pending before the senior judge.”  Fla. Code Jud. Conduct, Canon 5F(2). The senior judge must also disclose if there have been any negotiations or agreements between the judge and any of those same parties or attorneys for any such dual services. Furthermore, absent express consent from all parties, for a period of three years, a senior judge cannot preside over any case involving any attorney, party, or law firm that is utilizing or has utilized the judge as a mediator, arbitrator or voluntary trial resolution judge. Id.

For the reasons set forth above, we conclude that the inquiring judge must not serve as a senior judge and as an insurance umpire affiliated with an entity as described above. Nor does the information provided to us here indicate that serving as an insurance umpire is necessarily the equivalent of serving as a mediator, arbitrator, voluntary trial resolution judge, or litigant-paid special master; therefore, we find that it would not be permitted under the guidelines set forth in Canon 5F(2) for permissible several dual service roles.

(Mike Frisch)

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

Thursday, December 22, 2016

Florida Judges May Attend Inauguration

An opinion from the Florida Judicial Ethics Advisory Committee

ISSUES

1. May a judge attend the 2017 Presidential Inauguration?

ANSWER: Yes, as long as no funds are paid to a partisan political organization.

2. May a judge attend the Florida Inaugural Ball being hosted by the Florida State Society?

ANSWER: Yes, as long as no funds are paid to a partisan political organization and attendance is not limited to members of one partisan political party.

The Committee believes that mere attendance at any particular presidential inauguration does not violate Canon 7. Attendance at a presidential inauguration does not amount to a public endorsement or an implicit statement of support for a candidate for public office or a particular political party. Nor does it constitute attendance at a political party function. Rather, a presidential inauguration is open to members of all political persuasions; it is a national celebration for the entire country. See Fla.JEAC Op. 12-03 n.3. Indeed, it is implicit in the intended peaceful transition of power in this country that citizens of all political persuasions accept the election of the prevailing candidate. Celebration of the election of any presidential candidate should not therefore be deemed to be inappropriate political activity, even after a campaign season marked by robust and divisive partisan political activity.

In making arrangements for and attending the inauguration, however, the judge should be careful not to otherwise violate Canon 7 or any other provision of the Code. For example, the judge may not make payments to a political organization in order to obtain premium seating at the inauguration. Simply put, the judge must at all times avoid inappropriate political activity or the appearance of impropriety, and shall uphold the integrity and independence of the judiciary. Fla. Code. Jud. Conduct, Canons 1, 2, and 7.

With respect to attendance at the Florida Inaugural Ball, the same prohibitions apply. The judge states that the Florida Inaugural Ball is being hosted by the Florida State Society. The Committee has no reason to believe that the Florida State Society is a partisan political organization or that the Florida Inaugural Ball is a political party function. Ultimately however, it is the responsibility of the judge to make reasonable and sufficient inquiry to assure that any payment being made, either by the judge or on the judge’s behalf, to attend the Florida Inaugural Ball involves no funds being paid to a partisan political organization, and that attendance at the Ball is not limited to members of one partisan political party.

(Mike Frisch)

December 22, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)