Monday, June 2, 2014
A town court justice was censured by the New York Commission on Judicial Conduct for, among other things, his involvement with a DUI defendant
In sum, respondent's handling of the Matus case was inconsistent with numerous fundamental ethical principles. Viewed objectively, the totality of his conduct chatting with a defendant about his case during a ride in a police car, recommending that the defendant retain a lawyer with whom the judge had a business relationship, and granting the relief requested by the defendant even after respondent had indicated he could not handle the case breached the appropriate boundaries between a judge and a litigant and thereby created "a very public appearance of impropriety" (Referee's report 13), which adversely affects public confidence in the judiciary as a whole.
He also imposed fines in excess of the allowable maximum and made improper political contributions. (Mike Frisch)
The New York State Commission on Judicial Conduct removed a judge of the Albany Surrogate's Court as a result of findings summarized in a press release
The New York State Commission on Judicial Conduct has determined that Cathryn M. Doyle, a Judge of the Surrogate’s Court, Albany County, should be removed for presiding over matters involving her close friend, her personal attorney, and a lawyer who acted as her campaign manager. The judge was publicly censured by the Commission in 2007 for giving testimony that among other things was "evasive and deceptive," "misleading and obstructionist."
From 2007 to 2011 Judge Doyle failed to disqualify herself from, and took judicial action in, nine matters involving attorneys with whom she had close professional and personal relationships: four matters involving her close friend and personal attorney, Thomas J. Spargo; four matters involving attorney Matthew J. Kelly, the judge’s de facto campaign manager in her 2007 failed campaign for a nomination to the state Supreme Court and later the campaign manager in her 2010 campaign for reelection as Surrogate; and one matter involving William Cade, the attorney who had represented her in an earlier Commission proceeding that resulted in her censure in 2007. (Mr. Spargo was himself removed from judicial office after a Commission proceeding in 2006 and, in related proceedings, was disbarred by the Appellate Division and convicted of a felony in federal court.)
Among the judicial actions Judge Doyle took in these matters was admitting wills to probate, issuing letters of administration, signing decrees granting administration after probate, conducting conferences and issuing various orders, appointing guardians ad litem for infants named in a will, and determining that particular infants were intended trust beneficiaries of a will.
As to removal
In imposing the sanction of removal, the Commission underscored that the misconduct began soon after she was censured by the Commission in 2007 for giving "evasive" testimony in a proceeding inquiring into her actions in connection with a legal defense trust fund for Mr. Spargo, who was then a Supreme Court Justice. The Commission stated that, "if not for her disciplinary history, [Judge Doyle] may have had a more credible argument to retain her judgeship." The Commission concluded: "Under the circumstances, we are constrained to view [Judge Doyle’s] misconduct with particular severity since, in view of her censure in 2007, she should have been especially sensitive to her ethical obligations, including her duty to avoid even the appearance of impropriety."
The Commission's web page notes
Judge Doyle has requested review of the determination in the Court of Appeals, which has scheduled oral argument for June 5, 2014.
The Court of Appeals suspended Judge Doyle from office, with pay, pending review of the Commission's determination. The Court's order is available at Doyle Suspension.
The judge was on the Albany Law adjunct faculty. (Mike Frisch)
Tuesday, May 27, 2014
A judicial ethics opinion from South Carolina addresses this question
A full-time Magistrate judge inquires into the propriety of serving as the head baseball coach for a high school or an American Legion team. The high school team is funded by the school district which also pays the coach’s salary. The high school team is also supported by a booster club that has fund-raising projects. The American Legion team is funded by donations and sponsors, and the judge’s coaching position is an unpaid, volunteer position. The judge does not solicit sponsors or donations. The team’s general manager handles all donations, sponsors, and bookkeeping. However, the team does hold several fund-raisers, for which the judge participates in planning and operations. One fund-raiser was a golf tournament for which a flyer was produced asking for hole sponsorship; the judge’s name (with no reference to judicial office) was one of several others listed as persons to contact regarding the tournament.
It's OK with a caveat
Here, if the judge does continue employment with the high school, the judge should not actively solicit funds on behalf of the booster club, though the judge may assist the booster club in planning fund-raisers. If the judge observes the Canons on fund-raising, there is no violation against employment as a high school baseball coach.
As the coach for the American Legion team, it appears that the judge would only be involved in planning the fund-raisers, and not in any active solicitation. Moreover, the flyer listing the judge as one of the tournament organizers for the legion team is akin to the use of letterhead for fund-raising and, since the judge’s office is not included on the flyer, there is no violation of the Canons. Therefore, the judge may serve as an unpaid volunteer coach for an American Legion baseball team, provided that the judge continue to observe the limitations on fund-raising.
Thursday, May 15, 2014
The Florida Supreme Court has ordered that a circuit court judge be publicly reprimanded for a conviction for driving under the influence of alcohol.
The breath test results were double the legal limit.
The court called the conduct "reprehensible."
In Florida, a public censure requires the judge to appear in court to be reprimanded. The published opinion is not sufficient. (Mike Frisch)
Tuesday, May 6, 2014
A recent opinion from the Florida's Judicial Ethics Advisory Committee
Whether a Judge, who is a member of a regional Association for Women Lawyers, may participate as a model as a part of an event described as a “cocktail party and fashion show,” where the event’s proceeds “primarily benefit…a free childcare facility located inside the…courthouse” but also help fund the association’s “assistance to deserving law students in need of financial support.”
The inquiring judge is a member of a regional Association for Women Lawyers (“the Association”) in the judge’s circuit. The Association is presenting its “annual spring cocktail party and fashion show.” In addition to a spring fashion runway show produced by a local department store, the event will offer to attendees “exclusive storewide discounts, door prizes, a silent auction, and special VIP offerings.” According to the Association’s event chair, “This stylish event supports the growth of [the area’s] professional women and women-owned businesses, while raising money for two important causes: [a free childcare facility located inside the courthouse] and [the Association’s] Bar Scholarship [which provides assistance to deserving law students in need of financial support].” The Association’s solicitation letter for event sponsors states in part, “As a sponsor, you will have the unique opportunity to showcase your business to the stars of [the local area’s] legal, business and executive communities.”
The event chair explains that the free childcare facility serves children who are brought to court by their caregivers when the caregivers have no safe place to leave them during the caregivers’ required attendance in court. She states it “spares these children from witnessing adult interactions that could be painful or frightening for them.” The childcare program in the courthouse therefore provides a supervised drop-in childcare facility for litigants, jurors and witnesses when childcare issues might otherwise create an obstacle for court participants to attend court proceedings. The facility “also provides their caregivers with referrals to resources like full-time child care or career counseling so they can return to work, financial assistance for crisis situations, counseling for children who have experienced trauma, and even beds for their homes.”
The inquiring judge asks whether a judge is permitted to participate in the Association’s fundraising event by modeling some of the fashions in the spring fashion show.
Canon 2B provides, “A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others….” The Commentary to Canon 2B states in part:
Respect for the judicial office facilitates the orderly conduct of legitimate judicial functions. Judges should distinguish between proper and improper use of the prestige of office in all of their activities. A judge must avoid lending the prestige of judicial office for the advancement of the private interests of others.
In 2008, the Florida Supreme Court in In re Amendments to the Code of Judicial Conduct-Limitations on Judges’ Participation in Fundraising Activities, 983 So. 2d 550 (Fla. 2008) amended Canons 4 and 5 of the Florida Code of Judicial Conduct to allow for judicial participation in fundraising in the context of “quasi-judicial activities” and “extrajudicial activities” concerning the law, the legal system, and the administration of justice. Canon 4D(2) was amended to permit a judge to participate in a fundraising event if the event met two criteria: (1) the event is sponsored by an organization or governmental entity that is devoted to the improvement of the law, the legal system, the judicial branch or the administration of justice, and (2) the event concerns the law, the legal system, or the administration of justice and the funds raised will be used for a law-related purpose. If these two criteria are met, then a judge may “speak at, receive an award or other recognition at, be featured on the program of and permit the judge’s title to be used in conjunction with [a fundraising] event….” Fla. Code Jud. Conduct, Canon 4D(2)(b). But even if these criteria are met, Canon 4D(2)(a) prohibits judges from personally or directly participating in the solicitation of funds from anyone except from other judges over whom the judge does not exercise supervisory or appellate authority.
Canon 4 states, “A Judge Is Encouraged to Engage in Activities to Improve the Law, the Legal System, and the Administration of Justice.” Canon 4A provides, in pertinent part:
A. A judge shall conduct all of the judge’s quasi-judicial activities so that they do not: * * * (2) undermine the judge’s independence, integrity, or impartiality; [or] (3) demean the judicial office;
The Commentary to Canon 4B states, “This canon was clarified in order to encourage judges to engage in activities to improve the law, the legal system, and the administration of justice.” Canon 4D(2)(b), dealing with a judge’s participation in an organization devoted to the improvement of the law, the legal system, the judicial branch, or the administration of justice, now provides:
(2) A judge as an officer, director, trustee or non-legal advisor, or as a member or otherwise: * * * (b) may appear or speak at, receive an award or other recognition at, be featured on the program of, and permit the judge’s title to be used in conjunction with an event of such an organization or entity, but if the event serves a fund-raising purpose, the judge may participate only if the event concerns the law, the legal system, or the administration of justice and the funds raised will be used for a law related purpose(s);
The majority opinion in In Re Amendments, supra, observed that the amendment to Canon 4 “is intended to allow judges to participate in a law-related organization’s fundraiser only where the particular event serves a law-related purpose and the funds raised will be used for a law-related purpose.” 983 So. 2d, at 552. The opinion placed the responsibility on a judge who wants to participate in a fundraising event to determine if the event meets the criteria of Canon 4D(2). Id. Justice Peggy Quince, in her dissent cautioned that a judge who wants to participate in a fundraising event permitted by Canon 4D(2) “will have to make a judgment call on whether or not a particular organization or event falls within the ambit of the amendment.” In re Amendments to the Code of Judicial Conduct-Limitations on Judges’ Participation in Fundraising Activities, 983 So. 2d 550, 553 (Fla. 2008) (Quince, J., dissenting).
The Committee is of the opinion that the Association is an organization devoted to the improvement of the law, the legal system, the judicial branch, or the administration of justice. The courthouse childcare program improves the administration of justice by decreasing continuances due to childcare issues and by making the courts more accessible to parents who would not otherwise be able to attend required court proceedings because of a lack of childcare options. The Committee further believes the free childcare program in the courthouse contributes to the administration of justice by helping childcare providers to honor their required court appearances and by providing a safe and convenient childcare service for their children during such appearances.
Thus, the Committee advises the inquiring judge, who is a member of a regional Association for Women Lawyers, that the judge may participate as a model as a part of an event described as a “cocktail party and fashion show,” where the event’s proceeds “primarily benefit…a free childcare facility located inside the…courthouse” but also help fund the association’s “assistance to deserving law students in need of financial support.” Cf., Fla. JEAC OP. 11-06 (Judge may not speak and be featured on a program and permit the Judge’s title to be used for a fundraiser for a program which provides supervised childcare to parents and guardians who are attending court-related matters, because, although the program is law-related, it is under the umbrella of the YWCA, an organization that is not solely devoted to the law, the legal system, or the administration of justice.)
Monday, May 5, 2014
Over a pointed dissent by Justice Harris, the New Jersey Appellate Division has affirmed a criminal conviction.
The court squarely rejected the principal challenge of the defendant -- that he could not be tried before a judge who had been mandatorily retired when he reached the age of 70.
The 73-year-old judge was recalled from retirement to hear the case.
The court noted regular practice that has long permitted retired judges to be recalled to preside over cases and responded to the dissent
Stripped of its plumage, the dissent's contrary construction boils down to this: the plain language of the Judicial Retirement paragraph creates an irrevocable alienation of pensioner from title, a kind of sequestration, worse yet quarantine, rendering the judicial retiree incognito, isolated and idle, relegated to some sort of professional limbo, yet imprisoned by all the ethical restraints of a status and an office that somehow no longer exists. Nothing in the language of the Judicial Article, or its intended purpose, however, compels this overly harsh result.
Warning: the elegantly pragmatic approach of the able and well-researched opinion of my colleagues may seduce the reader into undiscerning agreement. I urge caution and a willingness to disagree...
Notwithstanding its salutary purposes and practical success, N.J.S.A. 43:6A-13(b) cannot be justified when taking bearings from the Constitution. Historical acceptance cannot establish the statute's bona fides, see Henry, supra, 204 N.J. at 345 (Rabner, C.J., concurring) (noting that "historical practice alone rarely proves the correctness of a legal proposition"), and historical patterns cannot save an unconstitutional practice.
I take final comfort in the recollection of Morris M. Schnitzer, who was asked in 1995, "Was it contemplated that judges, once retired at age 70, could be recalled?" Conversations with Morris M. Schnitzer, supra, 47 Rutgers L. Rev. at 1401. Schnitzer —— who was present during the Constitution's conception, gestation, and birth —— unequivocally responded: "Certainly not, since that would have resurrected the example of Justice Parker and others who sat long after their peak." Ibid. If that is the way Schnitzer remembered it, who am I to disagree?
Mr. Schnitzer is remembered here. (Mike Frisch)
Thursday, May 1, 2014
The Florida Supreme Court has issued a public reprimand of an attorney for an ethical violation during a campaign for judicial office.
In September 2009, the Respondent became a candidate for County Court Judge, Group 10, Hillsborough County, Florida. On September 4, 2009, the Respondent signed a campaign fundraising letter, in which she personally solicited campaign contributions. The Respondent admitted to having reviewed and approved the letter. At the time she signed the letter, no other candidate for the judgeship had been announced. In addition to soliciting campaign contributions, the letter stated that the Respondent served the "community as Public Defender," though her correct title was "assistant public defender." The letter also included a link to the Respondent’s website, which correctly referenced her work history as an assistant public defender.
The court rejected a constitutional challenge to the code provision.
Under Canon 7C(1), the Respondent was not completely barred from soliciting campaign funds, but was simply required to utilize a separate campaign committee to engage in the task of fundraising. In other words, Canon 7C(1) is narrowly tailored because it seeks to "insulate judicial candidates from the solicitation and receipt of funds while leaving open, ample alternative means for candidates to raise the resources necessary to run their campaigns." Simes, 247 S.W.3d at 883. We conclude that Canon 7C(1) promotes the State’s compelling interests in preserving the integrity of the judiciary and maintaining the public’s confidence in an impartial judiciary, and that it is narrowly tailored to effectuate those interests. Therefore, we hold that Canon 7C(1) is constitutional, and we approve the referee’s recommendation that the Respondent be found guilty of violating rule 4-8.2(b).
Friday, April 25, 2014
David Hricik (Mercer, Law) has posted to SSRN a useful paper for judges, but also for the rest of us interested in how their ethics are affected by new technologies (and how to deal with lawyer ethics of using tech). It is titled Technology and Judicial Ethics and its abstract is:
This paper was written for judges to assist them in understanding: their obligations concerning Facebook and other social networking sites, including "friending" lawyers; the confidentiality of email, texts, and other e-communications; the use of the Internet by lawyers to research jurors or potential jurors; the use of the Internet by judges to research the facts and law; and how to admonish jurors not to use the Internet to research the case before them or to discuss it prior to deliberations.
Saturday, April 19, 2014
A state district court judge who improperly interfered with a pending matter involving a friend has been publicly reprimanded hy the Nebraska Supreme Court.
...here is essentially no dispute that [Judge] Schatz used his judicial authority to order the release of Davlin without Davlin’s paying a bond. The record shows that Schatz’ actions were not in accord with how bonds were normally set in felony drunk driving cases. Specifically, the record shows that without Schatz’ intervention, Davlin would have remained in jail until his arraignment in county court, when presumably either he would have been released on his own recognizance or a monetary bond would have been set. In the latter and more probable circumstance, Davlin would have been held in jail until he posted bond.
While the court did not condone the conduct, it concluded that a number a mitigating circumstances justified a reprimand. (Mike Frisch)
Wednesday, April 16, 2014
The New York State Commission on Judicial Conduct has released its annual report.
This press release summarizes the year in judging judges
The New York State Commission on Judicial Conduct has released its 2014 Annual Report, covering the Commission’s activities in 2013. The Commissionreports having received 1,770 complaints, conducting 654 preliminary inquiries and investigations, and issuing 17 public decisions in 2013. In addition, 10 judges resigned from office while complaints against them were pending.
The bottom line
17 public decisions were rendered:
2 Removals from office
• 5 Public Censures
• 5 Public Admonitions
• 5 Public Stipulations in which judges resigned and agreed to never again hold judicial office
• 5 other judges resigned at a point before the proceedings against them became public.
A detailed, annual report from a body regulating lawyer and judicial discipline promotes transparency and is a necessary part of any reputable regulatory regime.
The District of Columbia disciplinary system has never issued such a publicly-available report. (Mike Frisch)
Tuesday, April 8, 2014
A town court justice who presided over traffic, minor drug and alcohol offenses and small claims matters was suspended from the practice of law for not less than five years without automatic reinstatement by the Indiana Supreme Court.
Defendants who faced first-time traffic charges would receive deferred prosecution "if they took a defensive driving course." Such courses were conducted in the justice's courtroom on a Saturday with the profits going to the driving school.
But things changed
In October 2001, Respondent created her own business called Diversified Educational Services ("DES") which offered the defensive driving courses. Respondent's father contracted with W.S.1 to open a checking account in the name of DES, which Respondent and her father controlled. Respondent directed that the fees collected from defendants that she ordered to attend the driving school be deposited into the DES account. Between November 2001 and December 2003, people attending DES driving school paid fees totaling $29,600. W.S. was shown as the sole owner of the account to conceal Respondent's financial interest in DES. Respondent paid W.S. $3,800 from the DES account for his cooperation. Respondent did not disclose her financial interest in DES to the Town or to defendants charged with traffic offenses in her court.
In December 2001, Respondent stopped paying rent to the Town for DES's use of the courtroom for the driving classes. Between December 2001 and December 2003, DES conducted sixteen driving school classes for which no rent was paid to the Town.
The justice also used her position to profit from referral of young adults to a counseling program and concealed her financial interest in the referrals.
The justice was convicted of mail fraud and was suspended on an interim basis as a result. The court considered a number of mitigating factors. (Mike Frisch)
Monday, March 17, 2014
The North Dakota Supreme Court has ordered the suspension without pay for a month of an elected district court judge for sexually harassing his court reporter.
It statred with this
The Commission found that on May 24, 2010, Judge Corwin injured his hands while at work and his court reporter drove him to a hospital emergency room. Judge Corwin testified that "we came out of [the emergency room incident] with a connection we didn't have before." Because his hands were bandaged from the accident, Judge Corwin would ask the court reporter to come to his office and help him tie his necktie for court appearances. The court reporter did so and found the experiences "[u]ncomfortable but not alarming."
But the situation got worse
On July 15, 2010, Judge Corwin and the court reporter, along with other Cass County Courthouse personnel, went to a Fargo restaurant and bar for an after-work gathering where they consumed alcohol. Judge Corwin invited the court reporter to join him on a bicycle ride that evening. She did so, and after the bicycle ride, Judge Corwin invited her into his home where they each had a glass of wine. While in the home, Judge Corwin engaged the court reporter in a conversation which she reasonably construed as a proposition for a sexual relationship. The court reporter rejected the offer, telling him she had read an article advising "it was a mistake to get involved with your boss." Judge Corwin responded that not all office romances end badly and pointed to his own 20-plus year marriage to his former secretary. As the court reporter was leaving the home, Judge Corwin hugged and kissed her.
On the evening of Sunday, July 18, 2010, Judge Corwin called the court reporter at her home and requested she bring a blind she had taken to wash to the courthouse so he could hang it in a bathroom there. The court reporter told Judge Corwin she would not get involved in a relationship with him. On July 21, 2010, Judge Corwin called the court reporter while traveling to a court appearance in Hillsboro and asked if she would go on a bike ride with him the following evening. The court reporter declined the invitation and reiterated her belief that it was a bad idea for the two of them to become intimate. Judge Corwin became angry. While on an extended lunch break on August 3, 2010, the court reporter received a text message from a coworker telling her Judge Corwin had been in the court reporter's office for 45 minutes with his feet on the desk reading a transcript. This was something Judge Corwin had not done before. He was still there when she returned to her office. The court reporter felt intimidated by the experience.
The court reporter continued to make efforts to rebuff the advances of the judge, who was responsible for conducting her performance review. The review had salary implications.
The court concluded
The evidence establishes that Judge Corwin sought to have an inappropriate relationship with the court reporter after she rebuffed his efforts to do so. Judge Corwin treated the court reporter differently than her coworker on the team. After finally realizing a sexual relationship would not materialize, Judge Corwin suggested the court reporter be switched to another team and told her "'[i]f this were still the law firm, I'd have taken care of the problem a long time ago, but since you work for the state it's going to be a little tougher.'" Judge Corwin then began complaining about the court reporter's work performance to court administrators before and during her biennial performance review. Judge Corwin relies on the testimony of the presiding judge, who recollected that Judge Corwin did not want any disciplinary actions taken against the court reporter. However, the presiding judge did not become involved in this matter until much of Judge Corwin's inappropriate conduct had already occurred.
The judge has announced that he will not seek reelection when his term expires at the end of 2014.
The Forum of Fargo-Moorhead had the story. (Mike Frisch)
Friday, March 7, 2014
The Nevada Supreme Court denied a writ sought by a Las Vegas family court judge to derail an ongoing investigation into a host of allegations of misconduct involving, among other things, a federal fraud investigation, sex with an extern, domestic violence and taking marijuana that had been seized as evidence.
The Las Vegas Review-Journal reported on a recent three-month suspension of the judge last month as a result of an inappropriate relationship with a now-deceased prosecutor:
Following a week-long hearing in December, the judicial commission found that special prosecutors proved eight of 12 charges filed against Jones related to his relationship with Willardson, who still appeared before him.
Jones discovered Willardson’s body in the bathroom of her Henderson home on Dec. 26, the same day the commission’s decision on the charges was made public.
There were no signs of foul play, and the coroner is waiting for toxicology results before ruling on the cause of her death.
Commission prosecutors had accused Jones of violating rules of the Nevada Code of Judicial Conduct that require judges to avoid the appearance of impropriety and conduct themselves in a manner that promotes public confidence in the integrity of the judiciary.
The commission ruled prosecutors proved three counts that were tied directly to the judge’s affair with Willardson between October and December 2011.
Two of the counts alleged Jones improperly maintained the relationship while Willardson litigated child welfare cases before him and then did not disqualify himself from the cases. He issued a ruling in her favor in December, long after they had begun to date.
The other count accused Jones of interfering with Roger’s decision to remove Willardson from a child welfare unit that prosecuted cases in the judge’s courtroom.
The commission also found that prosecutors presented strong evidence to sustain three counts accusing Jones of using his judicial office to help Willardson prepare a response to a State Bar complaint against her stemming from their romantic relationship.
In this article on emails produced at the hearing, the prosecutor reportedly described the judge as "smoking hot."
In its opinion, the court held that a judge under investigation has more limited rights than after charges are brought.
The opinion in Jones v. Nevada Commission on Judicial Discipline can be found at this link. (Mike Frisch)
Wednesday, March 5, 2014
The Indiana Supreme Court has removed a superior court judge from office as a result of what the court characterized as serious judicial misconduct.
...alleged mismanagement, delays, and dereliction of judicial duties on cases; display of an inappropriate demeanor, retaliation, and creation of a hostile environment for attorneys and others working in the court; failure to complete necessary paperwork and adequately train or supervise court staff, which resulted in delayed releases of defendants from jail; and failure to cooperate with members of the Marion Superior Court’s Executive Committee to address the underlying issues that led to the delayed releases.
The court approved findings of three appointed masters. Among the findings were discourteous behavior to judges and attorneys in general but
The Respondent treated public defenders even worse. The Respondent’s dissatisfaction with public defenders assigned to Court 16 began as early as 2009, when she asked supervisors in the public defender’s office to reassign two public defenders from Court 16 because, according to the Respondent, they were "too adversarial," "extremely litigious," and not "aiding in the movement of cases."
From 2011 through 2012, the Respondent made the following derogatory comments, among others, in front of court staff. The Respondent crassly remarked about a particular deputy prosecutor’s weight on several occasions, once quipping that the deputy prosecutor "should have used that law school money and gone to Jenny Craig instead." The Respondent expressed disbelief that one public defender had passed the bar, adding that he must have had "someone … supporting him behind the scenes" or words to that effect. She called one attorney a "moron" and another "a pain in [the] ass." She referred to a supervisor in the public defender’s office as "evil," "very nasty," and "out to get certain people." Once in 2012, after a hearing involving a public defender, she walked into her office with a court employee and asked, regarding that public defender, "Can you believe that asshole, prick, dick, and did I mention he was an asshole?"
The Respondent had a practice in Courts 16 and 7 of favoring some court employees over others and keeping at least one employee as a confidant. She told some favored employees that she was suspicious of other employees, whom she described as "disloyal," "out to get" her, and not to be trusted. The Respondent made the following inappropriate comments, among others, to favored court employees about other employees: that one employee "wears her lesbianism on her sleeve," one was "ghetto fabulous," one would not have gotten her job "if it wasn’t for her daddy," one was "classless" with a "felon" for a boyfriend and "into illegal things," and others were "crazy," mentally ill, or in need of increased medication. These comments made the employees who heard them uncomfortable. Whenever a favored employee disagreed with the Respondent’s views or suggested she was being overly suspicious or critical, the Respondent stopped treating that employee as a confidant and asked that employee to return the judge’s office key with which that employee had been entrusted.
The Respondent openly ignored disfavored employees, took away some of their job responsibilities, did not respond promptly to their requests for time off, and did not share information with them in advance regarding when the Respondent would be absent and other scheduling matters. The disfavored employees felt ignored, disliked, and insufficiently informed.
The court considerd and rejected arguments against removal from judicial office
Regrettably, the Respondent’s pattern of neglect, hostility, retaliation, and recalcitrance toward investigating officials indicates an unwillingness or inability on her part to remedy deficiencies, alone or with others’ assistance. And the record in the present case does reveal attempts by others to help. Most notably, the Marion Superior Court’s Executive Committee tried to assist the Respondent in addressing the problem of delayed releases from jail, but the Executive Committee’s involvement was met by the Respondent’s hostility, noncooperation, and inaccurate representation that the problem had been rectified. On other occasions, the Respondent failed to work with other court officials, clerk’s office supervisors, and a supervisor in the prosecutor’s office who offered to help locate a courtroom for a trial. And, when the Commission later attempted to gather information about cases, the Respondent failed to cooperate fully and often presented untimely, incomplete, inconsistent, or unresponsive replies.
The court did not impose sanctions against the now-former judge's law license. (Mike Frisch)
Tuesday, March 4, 2014
The Tennessee Magistrate facing ethics charges for changing a child's name from Messiah to Martin has filed a statement denying the charges.
The submission seeks to distinguish cases cited by Disciplinary Counsel and concludes
Of all the forms of human expression, there are none with such permanent, life-altering consequences for another human being who lacks any ability to counter it, then the choice of a name. Children have no control over their names, and a child's only protection from potentially detrimental names lies with the state. Magistrate Ballew made a very difficult decision and she based that decision on her knowledge of the community and the future difficulties she thought that a child named "Messiah" might face.
Thus, the Magistrate seeks dismissal of the charges for lack of clear and convincing evidence.
Remarkable that the Magistrate would cite community intolerance as a basis to take this action.
Update: The New York Times is reporting that the matter has been concluded with a censure.
Update II: A Tennessee termination of parental rights case was just remanded. The child's first name is Karma. What goes around comes around. (Mike Frisch)
Wednesday, February 26, 2014
Disciplinary Counsel prosecuting the Tennessee judge accused of ethics violations arising from her changing a child's name from Messiah has filed a prehearing memorandum arguing that the name change and a subsequent interview violated judicial canons.
The memo acknowledges that there is no Tennessee case precisely on point and gathers precedents from other jurisdictions that have dealt with judges who inject personal religious beliefs into court proceedings.
The best of the bunch involves a Pennsylvania judge named named Fink:
Among the various charges lodged against the judge in Fink, was the inclusion of a bizarre incident where the judge interrupted a delinquency hearing and called for an in-chambers conference...At this meeting, [he] suggested that the boy might be possessed by demons and that a local priest should examine him to determine whether an exorcism was required. [He] then called a separate meeting with the boy's parents and told them the same thing.
He also had been found to regularly engage in religious commentary during Court hearings of various natures, and admittedly favored criminal defendants who professed belief a belief in Christianity.
We will post any response filed on behalf of the accused judge.
Update: There is now in place an order governing media coverage. The media is, among other things, directed to wear appropriate attire (unspecified) and comport themselves in a manner befitting the dignity of the proceedings. (Mike Frisch)
Wednesday, February 19, 2014
A recent opinion from the Florida Judicial Ethics Advisory Committee:
May a newly-appointed judge continue to host a weekend radio program playing classic songs for a commercial radio station?
ANSWER: Yes, as long as the judge ensures that the judge’s hosting duties do not demean the judicial office, the judge is not an employee of the radio station and the judge does not personally participate in advertising promotions.
The inquiring judge has recently been appointed to the bench and prior to the appointment had hosted a weekend radio program on a commercial radio station for many years. The hosted program generally consisted of playing “classic hits” from the 1960’s, 1970’s, and 1980’s. The inquiring judge acted essentially as a disk jockey – introducing songs, giving the weather, and dispensing music trivia about the songs/artists played.
During the inquiring judge’s radio program, the radio station utilized pre-recorded advertisements but the inquiring judge was not involved in the selling or recording of such advertisements. Occasionally, advertising packages sold to advertisers included the inquiring judge giving away a product or service to a listener (e.g. the third caller wins a glass bottom boat ride from an advertiser).
The inquiring judge also received compensation from the radio station for his disk jockeying duties in the amount of $20.00 per hour while in the studio “live” amounting to $60.00 per week in compensation.
The inquiring judge recognizes the applicable judicial canons raised by his inquiry and the Committee would like to acknowledge the judge for his efforts in both providing the Committee with a detailed factual basis outlining his inquiry and for his review of the Code of Judicial Conduct and past opinions of the Committee.
Rock on! (Mike Frisch)
The Tennessee Court of Criminal Appeals affirmed a conviction in a drug distribution case notwithstanding the fact that the judge was Facebook friends with an undercover informant who was a key state witness.
The court found that the digital connection did not create an appearence of impropriety or impair the judge's responsibilities as the thirteenth juror
The Defendant asserts that because the trial judge is Facebook “friends” with Dunaway, the appearance of bias is present. In this instance, the Defendant has simply not established that the trial judge’s participation in the social network Facebook prevented him from properly exercising his role as thirteenth juror. The record in this case is not developed as to the length of the Facebook relationship between the trial court and the confidential informant, the extent of their internet interaction or the nature of the interactions. The fact that the trial judge was “friends” on Facebook with a witness is not sufficient proof that the trial court could not impartially fulfill its duty as thirteenth juror. In our review of the record, we find nothing to suggest that the trial court did not adequately function in its role as thirteenth juror and nothing to indicate bias on the part of the trial court.
There is a warning note in a concurring opinion
...the opinion in my view should not stand for the proposition that a judge’s Facebook relationship with a litigant or a key witness for a litigant poses no ground for disqualification. I accept and agree with the trial judge’s commentary that one cannot reasonably expect a trial judge living in a small community to recuse himself or herself because he or she is acquainted with a litigant or a key witness. When a judge shares a Facebook “friendship” with such a person, however, the aggrieved party may be able to show that this “social media” relationship is more active, regular, or intimate than mere incidental community propinquity might suggest. For instance, how intentional is the relationship? Who initiated it and when? How do the participants use the medium? What type of information is shared? What is the frequency of the communications? Certainly, I could envision a properly presented Rule 10B motion that, upon proof, evinces at least an appearance of impropriety. See Tenn. Sup. Ct. R. 10 §1.2 (“A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.”). For instance, as in the present case, the judge’s familiarity with the Facebook “friend” may indicate his or her awareness of the “friend’s” conflict with the criminal justice system.
Thursday, February 13, 2014
This report rom Bert Crow on the web page of the Ohio Supreme Court
A judge is required to recuse from a case handled by a lawyer who participates in the judge’s campaign if there’s a “substantial political relationship” with the lawyer during the campaign fundraising period, according to an Ohio Supreme Court Board of Commissioners on Grievances & Discipline advisory opinion.
Opinion 2014-1 covers Rule 2.11 of the Ohio Code of Judicial Conduct. The lawyer requesting the advisory opinion also asked the board to re-examine a 1992 Advisory Opinion, which addressed some aspects of disqualification questions under the former code. Based on its updated view, the board withdrew the advice given in Advisory Opinion 92-9.
“Jud.Cond.R. 2.11 requires disqualification ‘in any proceeding in which the judge’s impartiality might reasonably be questioned,’” according to the opinion. “The political reality in Ohio is that judges are publicly-elected officials. Lawyers are charged with advancing the administration of justice, which includes participation in the evaluation of candidates for judicial office. This participation often takes the form of supporting a judge during an election campaign.”
“Given this framework,” the opinion continues, “the Board is of the opinion that a lawyer’s mere participation in a current judicial election campaign does not create a reasonable question as to the judge’s impartiality when the lawyer is before the judge.”
“However, if a lawyer’s current campaign activities evidence a substantial political relationship with a judge, a reasonable person would question the judge’s impartiality in cases involving the lawyer.”
Rather than creating a “bright-line test” regarding the judicial campaign activity of lawyers, the opinion lays out the factors for a judge to consider – on a case-by-case basis – to determine whether a substantial political relationship exists.
“If a judge concludes that he or she has a substantial political relationship with a lawyer involved in a case before the judge, disqualification is warranted for the duration of the current campaign fundraising period.”
The opinion goes on to detail criteria for determining when a lawyer’s participation in a campaign is substantial.
“Factors relevant to determining if a lawyer’s campaign activity creates a substantial political relationship with the judge include the length and level of campaign involvement, including whether the lawyer has campaign management responsibilities, the extent of the lawyer’s fundraising activities, whether the lawyer’s name appears on solicitation letters, emails, and the like, whether the election is contested, and the type of election (statewide, multi-county, or local). A lawyer’s title in a judicial campaign may be indicative of a substantial political relationship with the judge, but is not a determining factor in a disqualification analysis.” The board further stated that “[a]ny political ties between the laywer and judge occurring outside the campaign are also relevant.”
In offering this revised guidance to candidates and lawyers involved in campaigns, the board opinion specifically rescinded an earlier opinion from 1992 that had been based on the former Code of Judicial Conduct that was repealed in 2007.
“Because the Board now concludes that under the current Code and affidavit of disqualification cases decided after Opinion 92-9, a lawyer’s campaign involvement may require disqualification if there is a substantial political relationship between the judge and lawyer, … we withdraw Opinion 92-9 in its entirety.”
Friday, February 7, 2014
The Illinois Administrator has filed an amended complaint alleging that a candidate for judicial office made false statements concerning his opponent's work as a public defender:
The front side of Respondent’s campaign mailer referred to a 1989 case in St. Clair County in which Rodney Woitdke ("Woidtke") had been convicted of murder. The mailer stated that Woidtke spent 12 years in prison for a murder that he did not commit, and it cited an opinion of the Illinois Appellate Court for 5th Judicial District in 2000 that reversed the denial of Woidtke’s post-conviction petition and remanded for his case for a new trial, on the basis of a conflict of interest on the part Woidtke’s trial counsel, then-Assistant Public Defender Brian Trentman ("Trentman"). Respondent’s mailer then stated the following:
"Supervising Public Defender VINCENT J. LOPINOT and his Assistant, Brian Trentman ‘were NEGLIGENT in their representation of Mr. Woidtke in a 1989 criminal proceeding that resulted in his wrongful conviction of murder of Audrey Cardenas.’ (Source: Woidtke v. St. Clair County, St. Clair Public Defenders Office, Brian K. Trentman and Vincent Lopinot, No. 02-4223, May 2003) (sic)"
In the above-quoted text, Judge Lopinot’s name was in a very large font and all capital letters, while Trentman’s name was in a very small font and with only the first letters capitalized. See Exhibit One.
On the mailer, accompanying the above-quoted text, was a photograph of Judge Lopinot that bore the epigraph "NEGLIGENT" and was imposed over a larger photograph of a man whose wrists and mouth are bound.
Respondent’s representations that Judge Lopinot had supervised Trentman in the Woidtke case, and that Judge Lopinot was negligent in the case, were false. Judge Lopinot had no involvement in the Woidtke case in 1989.
Respondent knew that his representations that Judge Lopinot had supervised Trentman in the Woidtke case, and that Judge Lopinot was negligent in the case, were false, or he made the representations with reckless disregard as to their truth or falsity.
The answer is a vigorous denial of all the allegations.
The Respondent alleges that the charges against him are motivated by the fact that he ran as a Republican:
On information and belief, the prosecution here may be instigated for political purposes, with the complainants hoping to use this process to gain political advantage and/or to cover up their own wrongdoing. [Respondent] Duebbert was a Republican candidate for judicial office, and made a strong showing in the 2012 election, including receiving more votes than Lopinot in Monroe, Perry, Randolph, and Washington County (with a final tally of 55.57% to 44.43% in Lopinot's favor). Further, even if Lopinot did not supervise Trentman in his (conflicted) defense of Woidtke, three persons who recently ran for Democratic judicial office were involved in the Woidtke prosecution, and - based upon their roles therein - might have deemed themselves aggrieved by Duebbert's reference to the Woidtke case.
The answer also contends that the speech at isssue was protected by the Supreme Court's decision in Republican Party of Minnesota v. White. (Mike Frisch)