Tuesday, March 17, 2015
An appeals court lacks jurisdiction to review a trial court decision denying a defense motion to disqualify an entire prosecutor's office from the case, according to a decision issued by the Ohio Supreme Court.
The defendant is a Cuyahoga County Court of Common Pleas judge accused of a violent assault against his wife.
The Cuyahoga county bench is recused from the case; the county prosecutor's office did not recuse itself.
The Eighth District patently and unambiguously lacks jurisdiction over an interlocutory appeal of an order denying a motion to disqualify the prosecutor in a criminal case. We therefore grant the requested writ of prohibition and order the court of appeals to vacate the stay it issued in the underlying case and to remand the cause to the trial court for further proceedings.
There was a dissent
FEIFER, J., dissenting.
The Eighth District Court of Appeals should be given the opportunity to decide whether the denial of the defendant’s motion in the underlying case to disqualify the prosecutor’s office and appoint a special prosecutor is a final, appealable order. Determining whether a trial court’s order is final and appealable is what courts of appeals do. Should this court provide a shortcut in the appellate process in every instance in which a party asserts a lack of a final, appealable order in an appellate court? The fact that the answer to the question of whether an order denying the appointment of a special prosecutor seems obvious to the majority does not mean that the court of appeals “patently and unambiguously” lacks the jurisdiction to decide the question. In at least eight opinions issued in the past year, the Eighth District Court of Appeals analyzed the appealability under R.C. 2505.02 of the order appealed from and dismissed the case for lack of a final, appealable order. Should this court have jumped in and prevented that court from making those determinations? Did the fact that the court of appeals determined that it lacked jurisdiction mean that it “patently and unambiguously” lacked the jurisdiction to decide that issue in those cases?
If the appellate court were to decide the issue incorrectly in this case, this court could fix it. That’s what we do. But I dissent from the majority’s decision to prohibit the court of appeals from doing its job.
RENCH and O’NEILL, JJ., concur in the foregoing opinion.
Cleveland.com reported on the criminal charges. (Mike Frisch)
Wednesday, March 11, 2015
A recent opinion from the Florida Judicial Ethics Advisory Committee
May a judge attend an award luncheon to accept an award and be inducted into a County Hall of Fame sponsored by the county’s Women's History Coalition, where program advertisements are sold to raise funds for the sponsoring organization?
May the judge attend if the judge informs the organization that it cannot use the judge's name or office for fundraising in any way, such as by including the name or office in any advance publicity concerning the event, in the formal invitation, or in any advertisements or congratulatory messages in the program?
The Committee observes that, despite having the occasion to do so in 2008, the Supreme Court did not relax the Code’s ethical restrictions against a judge being a speaker or guest of honor, or otherwise being featured, at a civic or charitable organization’s fund-raising event, unless the event concerns the law, the legal system, or the administration of justice as authorized by Canon 4D(2)(b). See Commentary to Canon 5C(3) (b). Thus, the Committee believes this inquiry has been answered previously by JEAC Op. 99-09, which concluded Florida’s Code of Judicial Conduct precludes the attendance of the judge at this fund-raising event..
From the web page of the Ohio Supreme Court
The Ohio Supreme Court today publicly reprimanded Judge Amelia (Amy) Salerno of the Franklin County Municipal Court for remarks she made to a jury after a not-guilty verdict.
Following a criminal trial, Judge Salerno told the jurors, along with others from the jury pool, that the verdict in the case was wrong, and she also disclosed additional charges pending against the defendant.
In a unanimous decision, the Supreme Court concluded that Judge Salerno violated two judicial conduct rules – one that requires judges to behave in ways to promote the judiciary’s integrity and impartiality, and another that bars judges from commenting on jury verdicts except in a court order or opinion.
Several jurors were upset by Judge Salerno’s criticisms, and her statements attracted national media coverage, subjecting the state’s judicial system to criticism and ridicule, the court noted.
In May 2014, the Ohio State Bar Association filed the charges against Judge Salerno, who has served on the municipal court since 2005. The judge and the bar association agreed to certain facts, the violations, and the sanction. The Board of Commissioners on Grievances and Discipline (now called the Board of Professional Conduct) recommended that the Supreme Court adopt the consent-to-discipline agreement between the parties, and the Supreme Court agreed in its per curiam opinion.
Detail here from the Columbus Dispatch.
LaShawn Chapman voted “not guilty” on Thursday along with her fellow Franklin County Municipal Court jurors in a misdemeanor assault case.
Then Chapman went home and cried, not because of the stress of deliberation, but because of what Judge Amy Salerno said to the jury after the verdict.
“(The judge) said, ‘Ninety-nine percent of the time, the jury is correct,'" according to Chapman. "'Now it’s 98 percent. You got this wrong.'
“She berated us,” Chapman, 39, said of the judge. “It was just nasty.”
Four of the eight jurors who decided the case have complained to Administrative Judge James E. Green about how Salerno spoke to them afterward...
Friday, February 27, 2015
A busy day in Kansas for gender-based misconduct.
A district court judge was suspended without pay for 90 days by the Kansas Supreme Court based on these findings
Respondent engaged in harassment as well as gender bias by making repeated inappropriate and offensive comments in the presence of female attorneys employed by the Sedgwick County District Attorney's Office.
The Respondent's conduct was directed toward multiple female attorneys, including Melissa Green, an attorney employed by the Office of the District Attorney, Juvenile Division, in the 18th Judicial District since January 2013. Respondent engaged in incidents of inappropriate, harassing behavior towards Melissa Green.
While Ms. Green was employed with the now-named Department for Children and Families prior to her employment with the Office of the District Attorney, Ms. Green was assigned to Respondent's court for approximately five years. Ms. Green testified that, in approximately October 2006, at a time when Respondent and Ms. Green were in the courtroom alone, Respondent told Ms. Green that after his wife gave birth the doctor asked Respondent if he wanted an extra stitch in Respondent's wife for Respondent's pleasure.
While Ms. Green was employed with the Department for Children and Families prior to her employment with the Office of the District Attorney, Respondent regularly made sporadic and pervasive comments of a sexual or suggestive nature. Two examples were telling Ms. Green she was the girl who wouldn't date him in high school and remarking on another occasion, 'whatever, prom queen.' Ms. Green testified that, although each comment standing alone might not have been offensive, it was the cumulative effect of so many of these comments that became offensive.
While Ms. Green was employed with the Office of the District Attorney, Ms. Green made and delivered an over-the-hill birthday cake for Jennifer Redd's birthday party, at the request of Respondent. Respondent pointed to a representation of an old couple crossing the street and laughed, stating it looked like she was giving him the 'reach around.' Ms. Green testified at the hearing that this is a comment of a sexual nature from the gay community and could not have been used innocently.
With another attorney
Respondent made inappropriate comments in late 2011 insinuating that Ms. Marino liked to have a lot of sex. The comments were based on a vacation she was taking to Las Vegas and a statement that she liked to play a slot machine called Sex in the City. Her comment was apparently cut short, resulting in a statement that she liked sex. Respondent repeated the joke numerous times to Ms. Marino's embarrassment. "
Respondent joked about whether Ms. Marino was pregnant or would be pregnant after vacations. This subject continued for a few years. One incident in particular occurred in 2013 when Respondent inquired across the courthouse parking lot whether Ms. Marino had 'another one on the way' after she returned from vacation. Respondent testified these comments were not sexual but rather celebrated children. The Panel did not find this explanation credible
There are a number of other instances of like misconduct identified in the court's opinion.
As to sanction
Looking first at the nature of the misconduct, the evidence established that the Respondent exhibited extremely poor judgment or blatantly misused the power of his judicial position in multiple ways. He made offensive and demeaning comments of a sexual nature to female attorneys and staff members. Those victims endured the harassment over an extended period of time because they feared Respondent would use his professed political connections to jeopardize their careers. The Respondent interfered with an attorney's practice by sending an ex parte email communication to the attorney's client that expressed bias or prejudice toward the attorney, founded in part on the Respondent's apparent disagreement with the attorney's moral beliefs. Finally, the Respondent tried to use the influence of his judicial position for personal gain by brokering an employment opportunity for his wife. These offenses were not inadvertent "technical" missteps. The nature of Respondent's misconduct struck at the very heart of the honor and dignity that the public expects and the legal profession demands from a judge.
The extent of Respondent's misconduct was wide-ranging, especially with respect to the first count of the three-count complaint. What the Respondent's Chief Judge labeled "off color or blue humor" was pervasive and ongoing. The Respondent subjected multiple female attorneys and staff members to repeated inappropriate and offensive comments for literally years. Moreover, often the comments directed at a particular female were made in front of other persons, thereby further broadcasting the denigration of the judiciary's integrity...
...we do not view public censure as the appropriate sanction in this case and a majority of the court hereby imposes an initial sanction of an unpaid, 90-day suspension, commencing within 10 days of the filing of this opinion. A minority would impose a more severe sanction.
In addition, because Respondent does not seem to appreciate why his conduct was unacceptable, we also impose an educational requirement. Within 1 year of this opinion's filing date, Respondent shall have satisfactorily completed a course in sexual harassment, discrimination, and retaliation prevention training, as well as educational program(s) on the employment law applicable to such conduct. Respondent shall file a report with this court within that 1-year period, detailing the training and program(s) completed.
Further, Respondent shall be prohibited from accepting any position in the Eighteenth Judicial District that involves the supervision of any judicial branch employee, other than his chambers staff, for a period of 2 years following completion of the above-described educational requirement.
The Wichita Eagle had reported on the panel's censure recommendation.
My take: this result is marginally better than a mere slap on the wrist (i.e. censure) but it's a close, warm cousin of a wrist slap.
This is a judge I'd never want entrusted with matters that require the exercise of judicial discretion. (Mike Frisch)
Tuesday, February 24, 2015
The New York Commission on Judicial Conduct has imposed a censure of a Utica City Court judge for his holding two disruptive defendants in summary contempt.
In one matter, the judge found five contempts in one proceeding and ordered five consecutive 30 day sentences.
In the other, the defendant got 30 days for "smirking."
On two occasions respondent abused his judicial power by summarily holding defendants in contempt of court and depriving them of their liberty without due process. One defendant, who was disrespectful during a sentencing proceeding, was sentenced to a total of 150 days in jail on five separate counts of summary contempt, which respondent imposed in quick succession without issuing appropriate warnings or providing the defendant with an opportunity to make a statement in defense or extenuation of his conduct. Another defendant was held in contempt and sentenced to 30 days in jail for "smirking" as he was leaving the courtroom after the proceeding had ended. In before exercising his contempt power and sending the defendants to jail.
The Commission also expressed concern about other courtroom demeanor issues
While the record before us depicts a judge who holds defendants and lawyers to exacting standards of courtroom behavior and is quick to lecture them for perceived displays of disrespect (e.g., scolding Mr. Blount's lawyer and telling him to "shut up" when he quietly spoke to his client), respondent's own behavior fell short of the required standards. On several occasions he made injudicious, disparaging comments to and about attorneys. Respondent twice referred to a prosecutor as "a cigar store Indian" for not speaking during plea discussions. Such language was snide and demeaning, although we do not consider the term racially offensive in this context (see Matter of Duckman, 92 NY2d 141, 151  [judge described prosecutors as "mannequins" and "puppets" as part of a pattern of "open-court sarcasm and ridicule"). In another case, involving a 74-year old defendant who pled guilty to Disorderly Conduct, respondent stated derisively that the conviction gave the prosecutor "another notch on his belt." In a case where the prosecutor proposed a plea involving forfeiture of funds seized from the defendant, respondent speculated that the district attorney "wants to buy a new couch for his office" or "wants a new laptop or whatever." Respondent's flippant remarks were not only discourteous but impugned the lawyers' integrity and undermine their role in the eyes of defendants and the public, which is inconsistent with established ethical standards requiring judges to act in a manner that promotes public confidence in the integrity and impartiality of the judiciary and to treat lawyers with courtesy, dignity and patience...
The commission's press release is linked here.
The press release notes another allegation
The Commission dismissed an allegation that Judge Popeo had used a racial epithet in an off the record courtroom conversation with a lawyer. In dismissing the charge, the Commission noted the "conflicting testimony" and the difficulty of proving and rebutting a charge concerning a comment allegedly made off the record six years earlier.
Saturday, February 21, 2015
The Georgia Supreme Court upheld the malice murder conviction of a defendant for the shooting death of a police officer.
The defendant was 17 years old at the time of the offense.
The court rejected an ineffective assistance of counsel based on the defense attorney's failure to object to testimony of a former juvenile court judge who had presided over cases involving the defendant.
Justice Benham dissented on the sentence and the testimony issue
In addition to the constitutionality of the sentence imposed, I write because the testimony of Tracy Graham Lawson is deeply troubling whether or not an ethical violation occurred regarding her former status as a juvenile court judge for Clayton County. I believe counsel was deficient when he failed to object to her testimony at the sentencing hearing and that such deficiency was prejudicial to Bun.
Lawson, who was never tendered as expert, was allowed to testify, among other things, that Bun began his “criminal career" at the age of ten, that she had Bun detained at the age of 13 because she was afraid of him, and that no one could change his behavior patterns. Although Lawson was no longer a juvenile court judge with any authority over Bun after December 2008, she was also allowed to testify about incidents occurring after her judicial tenure and for which she could not possibly have first-hand knowledge. Lawson called Bun a “menace to society,” she said that Bun “scared [her] from the very beginning,” and opined, “You can’t change this young man, I’m convinced of it.” Lawson also said she knew the victim, said the victim was “a wonderful human being,” and said she disqualified herself from prosecuting Bun in the instant case because she believed she could not be impartial.
Whether or not allowing Lawson to testify was a technical violation of judicial ethics, her testimony certainly had the appearance of impropriety inasmuch as Lawson was given a platform, under the guise of her professional status as a former juvenile court judge, to give her personal opinions about Bun while simultaneously admitting she could not be impartial where Bun was concerned. The fact that Lawson was no longer a judge at the time of her testimony does not mitigate the prejudicial effect the weight of her opinions had on the outcome of Bun’s sentencing. Indeed, I can think of no case where a former judge has testified against a defendant in a current criminal proceeding and essentially testified as to her personal opinion on the defendant’s predilection for criminality. When a defendant has a prior criminal record, we allow the certified copy of that prior record to speak for itself. We do not allow former prosecutors, former defense attorneys, and former judges involved in the prior case to testify about a defendant’s character for sentencing purposes or otherwise.
Justice Hunstein agreed that trial counsel's failure to object amounted to ineffective assistance. (Mike Frisch)
Friday, February 20, 2015
A part-time magistrate has been publicly reprimanded by the Iowa Supreme Court for misconduct in connection with a search warrant.
"Déjà vu all over again." We expect lawyers and judges to learn from their mistakes. When a judicial officer repeats violations of the same ethical rules, sanctions can escalate. In this case, the Iowa Commission on Judicial Qualifications (the Commission) recommends we publicly reprimand Magistrate Douglas A. Krull for signing a warrant to search the home of his client. Krull in his private practice represented the mother in a pending action against her ex-husband to modify the child-custody provisions of their dissolution decree. A police officer sought the search warrant in a burglary investigation targeting their son. Magistrate Krull saw this matter as different from a search warrant he signed six years earlier that led to the reversal of a criminal conviction because he contemporaneously represented a client bringing a custody action against the subject of the search. State v. Fremont, 749 N.W.2d 234, 235, 243–44 (Iowa 2008) (holding Magistrate Krull’s conflict of interest invalidated warrant). The Commission issued Magistrate Krull a private admonishment for the Fremont transgression. This time, the district court judge in the modification action granted the opposing party’s motion to disqualify Krull, requiring a continuance and new counsel for Krull’s client.
The court found that a prior warrant-related incident was an aggravating factor
In both matters, Magistrate Krull signed a warrant to search the property of a party in pending civil litigation in which he was counsel of record. Both transgressions carried adverse consequences—in Fremont, Magistrate Krull’s conflict required us to vacate a conviction, 749 N.W.2d at 244, and here, the parties were subjected to delay and additional expense resulting from the continuance of the trial and retention of new counsel. In both cases, Magistrate Krull’s conflict between his public and private roles led to an appearance of impropriety. He should have learned from Fremont to recuse himself from any search warrant application targeting someone who is a party in a case in which he is counsel of record. His prior admonishment for violating the same rules is an aggravating factor.
In mitigation, the magistrate was cooperative and
Importantly...Magistrate Krull was motivated not by personal gain, but by his desire to carry out his judicial duties and serve the people of Worth County. He realized if he recused himself, the nearest available judicial officer was at least thirty miles away. There is no evidence that Magistrate Krull signed the warrant to gain an improper advantage for his private client. We weigh the appropriate sanction mindful of the "duty to sit" to fulfill judicial responsibilities. We consider Magistrate Krull’s motivation to honor that duty as a mitigating factor.
The court found that, the second time around, public discipline was appropriate. (Mike Frisch)
Thursday, February 12, 2015
Stephanie Breouger reports on the web page of the Ohio Supreme Court
The Ohio Supreme Court today has suspended a long-time magistrate accused of abusive and disrespectful conduct.
The Supreme Court ruled 4-2 to suspend Stephen E. Weithman of Delaware for two years, stayed, for violating professional conduct rules. Weithman served as a magistrate for more than 30 years, most recently in the Delaware County Common Pleas Court Domestic Relations Division.
Among the charges brought by the Disciplinary Counsel, Weithman was accused of making inappropriate comments during a contentious case of a woman who claimed her ex-husband was in contempt of court for posting nude pictures of her on the Internet. Weithman lost his temper during a March 2007 hearing and went on a profanity-laced tirade. During the trial in 2008, Weithman jokingly told the ex-husband’s lawyer he would pay him a dollar to make the ex-wife cry on the stand. He was also accused of looking at the ex-wife in a “demeaning and degrading fashion” in the hallway.
In another case from 2013, he used abusive, vulgar language and yelled at a husband’s lawyer while threatening to delay the divorce. Weithman refused to recuse himself, but was later removed from the case by the trial court after the husband’s lawyer filed a motion challenging his impartiality.
While the Board of Commissioners on Grievances and Discipline, now known as the Board of Professional Conduct, recommended Weithman be suspended for one year, with six months stayed with conditions, the Supreme Court decided to increase the length of his suspension to two years to “best protect the public from future misconduct at Weithman’s hand.”
“Weithman’s quick temper, his impatient, disrespectful, and profanity-laced rants directed toward the litigants and counsel who appeared in his courtroom, and his failure to curb displays of disrespect and excessive familiarity exhibited by counsel who had long practiced in his courtroom have also compromised public trust and confidence in the independence, impartiality, and integrity of the judiciary,” the court wrote in the per curiam decision.
His suspension will be stayed as long as he doesn’t engage in any further misconduct and that he remain in compliance with the terms of a contract with the Ohio Lawyers Assistance Program for treatment of mental health issues.
Justices Terrence O'Donnell, Sharon L. Kennedy, Judith L. French, and William M. O'Neill joined in the majority opinion.
Chief Justice Maureen O’Connor and Justice Judith Ann Lanzinger dissented and would have imposed the one-year suspension with six months stayed.
Justice Paul E. Pfeifer did not participate in the decision.
This is so goddamn simple. If you give the discovery and don’t do all this bullshit, I don’t have to sit here for hours and listen to this crap. So everybody’s excused.
Goddamn it. Comply with discovery and shut up once in a while. You make 17 hairline things, we’ll do 8 of them but not these 9. Stupid. All Franklin County attorneys are stupid.
I don’t know what it is with the Franklin County Attorneys, these Franklin County Attorneys, but they all have to have these Rule 75 hearings in every case, Rule 75 hearings all the time. I’ll give you your Rule 75 hearing but you won’t get a decision on this until the divorce is tried and I’ll continue this divorce for two more years.
The court found mitigation
His treating psychologist reports that Weithman has been forthcoming, has uncovered major triggers for his anger, and has worked hard to interrupt the pattern and correct the ways in which he shows his anger
Thursday, February 5, 2015
The Tennessee Court of Criminal Appeals has affirmed a trial court order denying access to the full file of a criminal investigation of a judge
Petitioners, the parents of the victims in the underlying criminal cases, sought to intervene in those proceedings for the purpose of challenging the trial court’s order to seal portions of an investigative file of the Tennessee Bureau of Investigation that was identified during the motions for new trial in the underlying cases. Because we conclude that Petitioners have no statutory or constitutional right to access the sealed confidential information in the file, we affirm the trial court’s denial of their request to unseal.
The investigation involved criminal activities of the first trial judge and resulted in a new trial for some of the defendants.
These cases arise from the heinous kidnapping, sexual assault, torture, and murder of a young couple in January 2007. After an investigation, Defendants Letalvis Cobbins, Lemaricus Davidson, George Thomas, and Vanessa Coleman were indicted and prosecuted for numerous crimes stemming from this incident. At the original trials on these offenses, the presiding trial judge was Richard Baumgartner. All of the Defendants were convicted in separate trials and sentenced. After the sentencing hearings, the presiding trial judge pled guilty to a charge of official misconduct and resigned before hearing the Defendants’ motions for new trial. Senior Judge Jon Kerry Blackwood was then appointed as the successor judge.
The second trial judge had reviewed the full report and placed into the record those portions deemed relevant to the criminal case.
In this case, the trial court redacted and sealed portions of the TBI file that it determined “ha[d] no business being in the public domain and [were] not relevant at all to any of the issues that are pertinent to this case.” This was a proper admissibility determination in which the trial court excluded irrelevant material. The trial court clearly explained that it was releasing to the public in Exhibit 5 all information in the TBI file on which it was relying in adjudicating the defendants’ motions for new trial. Indeed, the 10 extent of the detailed information that was publicly revealed by the trial court at the hearing demonstrates that the trial court was not hesitant to unveil the lurid details of any relevant information from the TBI file. This was not a situation where the trial court considered relevant and admissible portions of the TBI file in making an adjudicatory decision and thenchose to redact specific parts of the information on which it relied because it believed that the nature of that information needed to remain confidential. In its memorandum and order, the trial court specifically found that “[t]here has been no showing that the court relied upon, nor that the parties referred to, any portion of the TBI record not made a public record.” Because the portions of the TBI file that Petitioners seek to unseal were inadmissible as irrelevant and not used by the trial court in the adjudication process, we conclude that they do not have a First Amendment right to that information.
The Knoxville News Sentinel reported that the first judge was convicted of purchasing painkillers from a felon on probation before him.
Huffington Post also covered the judge's misdeeds
A former circuit judge in Tennessee has been sentenced to six months in federal prison for lying to cover up a scheme that provided him with painkillers and sex.
Richard Baumgartner expressed remorse at sentencing Wednesday in federal court, saying he was greatly shamed and regretted his actions. The 65-year-old former judge in Knox County was convicted in November of five counts of misprision of a felony.
Authorities said he lied to cover up a conspiracy involving a defendant from his court, a woman about half his age who had supplied him with pills and sex.
Tuesday, February 3, 2015
The Indiana Supreme Court has permanently removed a Muncie judge from office.
While most of the misconduct involved abusing the rights of litigants, there was this issue with the biological father of the judge's twins
On August 2, 2013, Respondent visited J.W.'s Facebook page and saw a picture of J.W. with his girlfriend, A.S., from a trip in April 2013.
On August 2, 2013, Respondent posted the following comment to the picture displayed on J.W.'s Facebook page: "Must be nice to be able to take such an expensive trip but not pay your bills. Just sayin' ."
Respondent's comment was visible to and seen by other Facebook users who had access to J.W.'s page. Several other Facebook users posted comments in reaction to Respondent's statements.
Respondent's posted remarks were visible for at least an hour before the comments were deleted by Respondent.
Respondent acknowledges that by making an injudicious comment on the Facebook page of J.W. on August 2, 2013, she violated Rule 1.2 of the Code of Judicial Conduct.
And this incident when J.W. came to pick up the twins from day care
Respondent arrived at the daycare shortly after J.W. and the other sheriffs deputy arrived.
For approximately fifteen (15) to twenty (20) minutes, Respondent yelled at J.W. in the daycare and in the daycare parking lot, making various derogatory comments about J.W. At that time, Respondent believed, per her understanding of the paternity order, J.W. should have picked the children up at her house rather than the daycare.
Respondent's conduct was disruptive and was observed by daycare employees and other parents who had come to pick up their children from the daycare.
The judge also used a racial slur in an interaction with J.W.'s girlfriend.
Details here from WISHTV.com. (Mike Frisch)
Tuesday, January 27, 2015
The North Carolina Supreme Court has approved a public reprimand of a general court of justice judge for misconduct in handling a divorce involving a member of the Armed Services who was stationed in South Korea.
The judge's violations
a. making inadequate inquiry into the rights afforded to Defendant Jason Foster, a litigant protected under the Servicemember’s Civil Relief Act of 2003, 50 U.S.C. App. §§501-597b (hereafter “the SCRA”), and failing to maintain adequate professional competence in this area of the law;
b. imprudently relying upon the counsel for the opposing party in the matter for a determination of the rights afforded to Defendant Jason Foster under the SCRA, without sufficiently performing her own independent inquiry and research into the law, and allowing opposing counsel to present such advice and opinion on the law to the Court outside of the presence of Defendant or anyone appointed as legal representation for Defendant; and,
c. inappropriately denying Defendant Jason Foster the appointment of legal representation guaranteed under the SCRA, thereby denying him his full right to be heard according to the law.
As to the advice of counsel
Plaintiff’s attorney provided Respondent with an undated, uncited publication, entitled “CROSSING THE MILITARY MINEFIELD: A JUDGE’S GUIDE TO MILITARY DIVORCE IN NORTH CAROLINA” by Mark E. Sullivan, discussing the SCRA and ways to challenge the claims of servicemen under the SCRA, specifically detailing ways that a judge could deny a serviceman a stay, when so requested, by finding that the serviceman did not show “good faith and diligence” when responding to a court action. Here, Defendant was not properly served with any motion or objection from Plaintiff’s counsel, had no notice of her objections to his request for a stay, and was not provided with the documents Plaintiff’s counsel presented to Respondent, which Respondent used in consideration of the Plaintiff’s counsel’s objections.
The judge stipulated to the sanction
With the benefit of hindsight, Respondent now admits and understands her error and that in fact her actions, even if unintentional and not motivated by malice or ill intent, did constitute conduct prejudicial to the administration of justice that brings the judicial office into disrepute. Respondent acknowledged that she has learned a valuable lesson from this incident and will be particularly vigilant to changes to the laws that affect the growing number of servicemen and servicewomen in North Carolina, and will make every effort to ensure that every person legally interested in a proceeding receives their opportunity to be heard according to the law in the [sic] all future dealings.
Thursday, January 22, 2015
From the Florida Judicial Ethics Advisory Committee comes this recent opinion
Must a judge, who receives no alimony or support from the judge’s former spouse, disclose or enter a disqualification order when a former law partner of the judge’s former spouse appears before the judge and rents space from and shares a receptionist with the judge’s former spouse?
Although one member of the Committee would require additional facts that might be relevant to this opinion, based on the underlying facts provided by the inquiring judge, the Committee believes that because the inquiring judge receives no alimony or support from the judge’s former spouse, no reasonable person would question the judge’s impartiality if an attorney appears before the judge who maintains a business relationship with the judge’s former spouse. Furthermore, disclosure of the attorney’s relationship with the judge’s former spouse is not required because the relationship is not relevant to the question of disqualification. See, e.g., Fla. JEAC Op. 02-05 where this Committee advised that a judge is not required to “per se disclose personal family matters” and that a judge in the family law division need not disclose that the judge is divorced and may potentially be involved in litigation concerning the judge’s children.
Wednesday, January 21, 2015
The New Jersey Supreme Court has issued an opinion on the following
In this judicial disciplinary matter, the Court considers two questions: (1) what the appropriate standard should be to measure whether a judge’s personal behavior presents an appearance of impropriety; and (2) whether respondents – two sitting judges – violated that standard by regularly dining in public with a longstanding friend who was under indictment for official misconduct.
In 2000, a group of friends began gathering weekly on Thursday evenings for dinner at a local restaurant followed by Mass at a nearby church. The group included Respondent Raymond Reddin, a Judge of the Superior Court in the Passaic vicinage since 2003, who was assigned to the Criminal Division; Respondent Gerald Keegan, a part-time Municipal Court Judge for the City of Paterson since 2004; Anthony Ardis, now the former Director of Management Services and Clerk to the Board of the Passaic Valley Sewerage Commission (PVSC); and others. Judge Reddin has been close friends with Ardis for fifty years; Judge Keegan and Ardis have been friends since about 1985. In February 2011, Ardis was arrested and charged with official misconduct, based on allegations that he used his public position to have subordinates perform home improvement projects for his friends and family using public resources. In June 2011, a State Grand Jury indicted Ardis, charging him with official misconduct, conspiracy, and theft by unlawful taking. Respondents knew that Ardis was under indictment for criminal offenses pending in Passaic County, and, at the same time, their group continued to meet weekly for dinner and Mass. Neither Judge considered whether their attendance raised any ethical concerns.
On Thursday, September 13, 2012, Judge Reddin, Judge Keegan, Ardis, and several others met for their weekly dinner at a restaurant in Passaic County. They dined outside on the patio in front of the restaurant. The same evening, a local Republican organization hosted a dinner at the restaurant and one of the guests (the grievant) recognized Judge Reddin and Ardis. The grievant later learned that Respondent Keegan, also seen dining with Ardis, was a Municipal Court Judge. The grievant knew that Ardis was under indictment and, days later, relayed his concerns via email to the Lieutenant Governor. The matter was referred to the Division of Criminal Justice, which, after interviewing the grievant, referred the matter to the ACJC for investigation. Although Respondents continued to dine with Ardis until the spring of 2013, they voluntarily stopped doing so as soon as they learned about the grievance from the ACJC. Both Respondents fully cooperated with the Committee’s investigation.
The court announced a new standard
"Would an individual who observes the judge’s personal conduct have a reasonable basis to doubt the judge’s integrity and impartiality?"
By socializing in public with a defendant who awaited trial on criminal charges, in the very courthouse in which one of the Respondents served as a criminal judge, both Judges in this matter reasonably called into question their impartiality and weakened the public’s confidence in the judicial system. That said, each Judge has an unblemished record and neither engaged in actual impropriety. Because the Court now revises the standard to assess a judge’s personal behavior, the Court declines to impose sanctions in this case. In an effort to offer guidance for the future, the Court emphasizes that going forward, the circumstances presented would result in the imposition of discipline under the new standard.
Tuesday, January 13, 2015
The West Virginia Supreme Court of Appeals has affirmed an order dismissing a civil action brought by a freelance news reporter for access to information concerning judicial ethics complaints.
In this matter, petitioner was not entitled to inspect or copy the complaints at issue. Taking petitioner’s complaint as true and construing it most favorably in his behalf, it is clear that petitioner’s September 7, 2012, and January 31, 2013, FOIA requests sought details of ethics complaints filed against individual West Virginia judges that were confidential under Rule 2.4. Petitioner states in his complaint that he requested the total number of judicial ethics complaints filed against individual West Virginia circuit and family court judges listed by name and categorized by year. In those requests, petitioner did not seek information regarding admonishments or hearings on formal charges before the Judicial Hearing Board, which would be public pursuant to Rules 2.7(c) and 4.3 and as otherwise permissible by law. Instead, petitioner sought information regarding "complaints filed"; such information expressly falls within that class protected by Rule 2.4.
The court upheld the consitutionality of Rule 2.4. (Mike Frisch)
Friday, January 9, 2015
The New York Commission on Judicial Conduct has admonished a town and acting village court justice.
This press release describes the conduct
The New York State Commission on Judicial Conduct has determined that Richard L. Gumo, a Justice of the Delhi Town Court and an Acting Justice of the Walton Village Court, Delaware County, should be admonished for failing to disclose that a key witness in a case was the daughter of the court clerk, permitting the court clerk to perform clerical duties in connection with the case and to be in the courtroom during the trial, and sending an inappropriate letter to the County Court Judge hearing the appeal.
The Commission concluded that Judge Gumo engaged in "impermissible advocacy" by advising the County Court Judge of facts outside the record and making legal arguments when the defendant appealed. By sending a letter that was "ethically and procedurally improper," the judge "abandoned his role as a neutral arbiter and became an advocate." The Commission stated that the judge sent the letter "in a fit of pique" because the County Court Judge had criticized his decision not to disqualify himself and had granted the defendant’s application for a stay. Judge Gumo’s decision in the case was later upheld on appeal.
The Commission also found that while it was not necessary for the judge to disqualify himself, Judge Gumo "should have disclosed the court clerk’s relationship to a potential witness in order to give the parties the opportunity to be heard on the issue before proceeding." Such disclosure, the Commission stated, was necessary "in order to dispel any appearance of impropriety and reaffirm the integrity and impartiality of the judiciary." The Commission also stated that the court clerk’s presence in the courtroom and the fact that she performed clerical duties in the case, "compounded the appearance of impropriety."
There is a partial dissent
I cannot conclude, however, that the clerk's performance of her normal clerical duties in the case and her presence in the courtroom during part of the trial violated the ethical canons under the particular circumstances here.
Court Clerk Kristin Beers was the sole clerk of the Walton Village Court. Had she been completely insulated from the Groat case, the judge himself would have been required to handle mail, perform scheduling and tnake routine notations in the court records, such as noting dates that papers were received or sent, that would have otherwise been made by the court clerk. I cannot conclude that a reasonable application of the ethical rules requires such a result under the circumstances here or that the judge's failure to do so compounds his misconduct.
Kristin Beers was not a court attorney or the judge's law clerk.
The partial dissent came from member Richard Stoloff. (Mike Frisch)
Monday, December 8, 2014
A judge of the Clarksville Town Court was reprimanded and ordered to resign from office by the Indiana Supreme Court for the following conduct
On January 16, 2014, Respondent was involved in an automobile accident in Louisville, Kentucky, that resulted in property damage to two parked cars and a fence. When later questioned by police at the hospital, Respondent admitted consuming alcohol prior to driving and having "too many" beers at a local area bar. Respondent refused to submit to a breathalyzer test or provide a blood sample. Noticing Respondent had glassy eyes and slurred speech, the officer arrested Respondent.
The judge pleaded guilty to criminal mischief in the second degree.
As to future service
he shall be ineligible for future judicial service in Indiana unless/until he submits to, and successfully completes to the satisfaction of [the Judges and Lawyers Assistance Program] , a two-year monitoring agreement and treatment plan approved by JLAP.
Friday, November 21, 2014
The New Jersey Appellate Division has reversed an order denying judicial recusal and ordered that the entire Bergen County judiciary be recused from a criminal case.
The defendant has allegedly threatened the lives of two county judges.
While there are other unthreatened judges in the county, the court here concluded that the "appearence of fairness" warranted the grant of the sought relief.
The defendant is charged with synagogue firebombings. (Mike Frisch)
Tuesday, November 18, 2014
Kathleen Mahoney reports on the web page of the Ohio Supreme Court
Harland H. Hale, who served on the Franklin County Municipal Court, has been suspended from practicing law for six months.
In a 5-2 decision, the Ohio Supreme Court determined that Hale improperly dismissed his personal attorney’s speeding ticket, tried to cover up that misconduct, and falsely testified in a disciplinary hearing that he had not represented clients in the months after he resigned from the bench.
This is the second time the court has considered the disciplinary complaint against Hale. In November 2013, the court returned the case to the Board of Commissioners on Grievances & Discipline to conduct further proceedings and to consider a harsher sanction than the six months the board had originally recommended. After reconsideration, though, the board again proposed a six-month suspension.
Hale was a judge in the municipal court’s environmental division and also served in rotation as a duty judge, assisting with criminal arraignments, traffic violations, and other court matters.
In November 2011, Patrick Quinn, Hale’s attorney in a civil lawsuit, received a speeding ticket. Quinn did not show up for his arraignment in December, and an arrest warrant was issued. Quinn contacted Hale, the duty judge at that time, asking to be arraigned without going to court.
When Hale reviewed the case file, he completed a form stating that the prosecutor was dismissing the charge against Quinn and the court was assessing no fines or costs. However, Hale had not discussed the matter with the prosecutor.
Following a media inquiry around April 2012, the city prosecutor began investigating how the case had been handled. Hale then contacted Quinn and the prosecutor, asking them to sign off on vacating the dismissal. When the prosecutor refused, Hale vacated the improper dismissal on his own and recused himself from the case.
The state’s Disciplinary Counsel filed a complaint against Hale the next spring, and Hale resigned from the bench on May 24, 2013. At a disciplinary hearing in March 2014, Hale stated that after he stepped down he had not acted as an attorney on legal matters until late November or early December 2013. A few months later, however, he notified the board’s panel reviewing his case that he had actually represented five clients during that time.
Of the seven alleged violations of judicial and attorney conduct rules, the disciplinary board voted to dismiss one that prohibits actions that adversely reflect on a lawyer’s fitness to practice law. After reviewing similar disciplinary cases in the state, the board again concluded that a six-month suspension was appropriate. It reasoned that Hale’s dishonesty related to only one incident and noted that he voluntarily gave up his job.
The Disciplinary Counsel objected to the board’s dismissal of one alleged rule violation and to the proposed sanction. Hale had argued he had served a self-imposed suspension after he resigned from the bench by not working on legal matters, even though he later admitted that was not true. Counsel contended that Hale’s false testimony was an attempt to keep the court from imposing a harsher punishment.
In an opinion written by Justice William M. O’Neill, the court found that Hale violated all seven conduct rules, including the lawyer fitness provision. Justice O’Neill stressed that Hale’s actions were serious ethical violations and that his false testimony was unacceptable, and then imposed a six-month suspension.
He noted several factors to support a suspension of this length: “(1) Hale practiced law for approximately 30 years without incident, (2) his misconduct was limited to a single case to which he had a personal connection, (3) justice was ultimately served in that matter, (4) … no litigants suffered permanent harm as a result of Hale’s misconduct, and (5) Hale acknowledged that his actions were not appropriate and voluntarily resigned from the bench within one month of [the Disciplinary Counsel’s] complaint being certified to the board.”
Joining Justice O’Neill’s opinion were Justices Paul E. Pfeifer, Terrence O’Donnell, Sharon L. Kennedy, and Judith L. French.
Chief Justice Maureen O’Connor and Justice Judith Ann Lanzinger dissented and would have imposed a one-year suspension.
Video of the oral argument is linked here. (Mike Frisch)
Friday, October 31, 2014
A circuit court judge has been censured, suspended and ordered to pay costs by the West Virginia Supreme Court of Appeals.
In this judicial disciplinary proceeding, a circuit court judge admits that she had an affair with a local man for over two years, and concealed the relationship from her husband and the man’s wife. The judge deliberately intertwined the affair with her judicial office, and eventually involved her staff, courthouse employees, the prosecuting attorney’s office, and local lawyers in concealing the affair. Further, the circuit court judge’s paramour and his subordinates routinely appeared in criminal cases on the prosecuting attorney’s behalf in her courtroom. The judge never revealed her relationship to any defendant or any other litigant even though she knew she was ethically bound to do so. She only admitted to the relationship when she learned that other lawyers were contemplating filing complaints against her with the Judicial Investigation Commission.
Eventually, the circuit court judge stipulated to some of the facts relevant to the affair. The circuit court judge also agreed not to contest some of the disciplinary charges against her because, as the Judicial Hearing Board found, "it was not credible to do so."
The evidence before the Hearing Board established a clearly articulable nexus between the judge’s extrajudicial misconduct and her judicial duties. The Hearing Board determined that the circuit court judge’s conduct constituted eleven separate violations of seven Canons of the Code of Judicial Conduct, and recommended she be severely sanctioned. The circuit court judge now appeals, arguing that there is insufficient proof to support five of the eleven violations, and arguing that the recommended sanctions are too severe.
As set forth below, this Court adopts the Hearing Board’s finding that the judge committed eleven violations of seven Canons. The judge demeaned her office, and significantly impaired public confidence in her personal integrity and in the integrity of her judicial office. As a sanction, we hold that the judge must be censured; suspended until the end of her term in December 2016; and required to pay the costs of investigating and prosecuting these proceedings.
The judge had the affair with a Mr. Carter. She placed court staff in a "difficult position" and used the services of her clerk, two attorneys and others to facilitate the relationship.
The court rejected her claim that this was a private matter
We largely reject Judge Wilfong’s arguments. We recognize that Judge Wilfong probably, initially, intended her conduct with Mr. Carter to be nothing more than a private relationship between consenting adults. "Although both were married to other people, we normally would be loath to interfere in such personal matters. In this case, however, the private aspects of the affair are secondary to the public problems it has created." In re Gerard, 631 N.W.2d 271, 277 (Iowa 2001). Judge Wilfong carelessly and deliberately intertwined her affair with her judicial office, and in so doing seriously damaged public confidence in the integrity and impartiality of the judiciary.
The suspension is without pay.
Judge Loughry concurred and dissented, reserving the right to file an opinion. (Mike Frisch)
Thursday, October 30, 2014
A county court judge has been removed from office by order of the Florida Supreme Court.
Among the findings of misconduct were issues relating to the sale of her self-published book
After considering all the evidence presented, the Hearing Panel concluded that Judge Hawkins was guilty of violation of Count I(A) in that she operated a private, for-profit business, from which she derived substantial income, from her judicial chambers using official time and judicial resources. The Hearing Panel also concluded that she used her judicial position to promote Gaza Road Ministries by selling and offering to sell Gaza Road Ministries products in the courthouse to persons over whom she had disparate influence and authority, including lawyers who appeared before her and various courthouse employees. The Hearing Panel found Judge Hawkins guilty of promoting the sale of Gaza Road Ministries products on a website that included photographs of her in her judicial robes, and guilty of knowingly using her judicial assistant to promote and produce the Gaza Road Ministries products during working hours.
The hearing panel also found that the judge had violated tax laws and
she was openly observed reading magazines, which Judge Hawkins later characterized as legal materials, during court proceedings and covering up her inattentiveness by asking counsel to rephrase the question.
The judge displayed lack of candor in the investigation.
we are constrained to conclude that Judge Hawkins’ prior record of service and good intentions cannot overcome the grievous nature of the violations in this case. While sale of her book to employees and lawyers in the courthouse, standing alone, would not justify removal, we cannot ignore the fact that Judge Hawkins employed court resources in the operation of her business for a lengthy period of time and failed to see that such conduct was improper under the Canons of Judicial Conduct. Moreover, even in the response to our final order to show cause, Judge Hawkins maintained a defensive posture concerning her conduct in refusing to answer questions and refusing to provide investigatory materials, even after issuance of an order to compel. In defending her conduct, Judge Hawkins asserted that her faith instructed her to hold fast to her innocence and "fight the good fight." We agree with the Commission that obfuscation and frustration of proper discovery, and refusal to answer questions posed by the Investigative Panel, Judicial Qualifications Commission counsel, the Investigator, and the Hearing Panel, do not constitute fighting the "good fight." The Canons require a judge to personally observe high standards of conduct so that the integrity of the judicial system may be observed
The opinion ends on this note
It is our hope that this decision will serve as a reminder to judges of their continuing obligation to personally observe the high standards of conduct mandated by the Code of Judicial Conduct, and to conduct themselves in all things in a manner that will demonstrate candor and preserve the integrity and independence of the judiciary.
Earlier coverage here from the Tallahassee Democrat. (Mike Frisch)