Wednesday, August 14, 2013
The Pennsylvania Court of Judicial Discipline found interim suspension without pay appropriate for a traffic court judge under felony indictment.
The court distinguished a prior matter against another judge suspended with pay because the charges against the other judge involve allegations of significantly lesser involvement.
Here, the judge was Administrative Judge of the Traffic Court and not only is alleged to have failed to stop errant behavior of other judges but "as many as six of the overt acts charged in the Indictment to have been personally committed by [the judge]...while he was Administrative judge.
In the case of this Respondent the conduct alleged in the Indictment is inherently disdainful of the laws he was elected to enforce, contemptuous of the law in general, took place over and over again, and became a way of life. And the law became a laughing-stock.
The opinion notes that the judge owned the Fireside Tavern and that the charges alleg that he fixed tickets for "family, friends, Fireside Tavern customers, a former politician and a Philadelphia ward leader." (Mike Frisch)
A town court justice who adjudicated a speeding ticket against his nephew by marriage has been admonished by the New York Commission on Judicial Conduct:
The record indicates that respondent's nephew by marriage appeared before him on two occasions with respect to the charge - initially to enter a not guilty plea, and later for sentencing. Seeing his relative, with whom he socialized several times a year, standing before him in a courtroom certainly should have reminded respondent - the defendant's uncle - of the clear conflict. In and of itself, the appearance of a judge's family member before the judge creates a serious apperance of impropriety, and under such circumstances the public can have no confidence in the judge's impartiality in the matter...Compounding the impropriety, the lenient disposition respondent imposed (reducing the Speeding charge to a parking violation and imposing a low fine) could reasonably give the impression that respondent's relative received favorable treatment, nothwithstanding that the prosecutor had recommended the reduction and notwithstanding respondent's assertion that his nephew's ticket was treated no differently than any similar ticket. Even the appearance of such favoritism is inconsistent with ethical standards and undermines public confidence in the integrity and impartiality of the judiciary.
The justice is not an attorney. (Mike Frisch)
Saturday, August 3, 2013
The Mississippi Supreme Court has imposed a 30-day suspension without pay and fined a Hinds County Youth Court judge who took action in a case after he had recused himself and abused his contempt power.
The basis for recusal was that the matter involved the relative of a court employee.
The court rejected the more lenient sanction jointly proposed by the judge and the Commission on Judicial Performance, stating that the commission "should examine the extent to which the conduct was willful and exploited the judge's position to satisfy his or her personal desires."
A concurring/dissenting opinion finds the sanction imposed to be unduly light:
I do not believe today's relatively mild punishment for illegally incarcerating two citizens and depriving them of contact with their children for months, will serve as much of a warning.
The concurring/dissenting opinion also notes that the judge acted because of an improper ex parte contact and caused the mother to be arrested in front of her four children. (Mike Frisch)
Thursday, August 1, 2013
A recent opinion from Florida's Judicial Ethics Advisory Committee:
1. May a judge running for re-election create a Twitter account with a privacy setting open so anyone — including lawyers — would be able to follow the account?
ANSWER: Yes, under specified circumstances.
2. May the judge’s campaign manager create and maintain the Twitter account instead of the judge?
In anticipation of the inquiring judge’s re-election campaign, the judge is considering using a Twitter account as one of the judge’s campaign tools. The inquiring judge explains that “Twitter does not require the account holder to select who follows the account holder’s ‘tweets.’ People just sign on and as the account holder ‘tweets,’ the account holder’s followers receive it . . . Another aspect of Twitter is the ability to create hashtags. All Twitter users then can search for tweets containing a specific hashtag . . . I could create a specific hashtag for my campaign account.”DISCUSSION
Prior JEAC opinions on the subject of social media have cited Canon 2B of the Code of Judicial Conduct as the applicable authority for restricting judicial use of social media. Canon 2B states in relevant part: “A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge.” The relevant part of Canon 2B is underscored here for emphasis. The analysis of the social media issue — specifically Facebook — focused upon selecting “Facebook friends.” The Committee opined that this function of Facebook lent itself to the appearance of impropriety, to wit: in choosing or declining to make someone — specifically a lawyer who appears before the judge — a Facebook friend, a judge “could convey or permit others to convey the impression that they [the Facebook friends] are in a special position to influence the judge.” Fla. JEAC Op. 2009-20.
Fla. JEAC Op. 2009-20 involved a judge inquiring in relation to the judge’s campaign plans. The inquiring judge’s inquiry was submitted in four parts:
- Could the inquiring judge post comments and other material on the judge’s social network site?
- Could the inquiring judge add lawyers as “friends” on the site, and permit such lawyers to add the judge as their “friend”?
- Could the inquiring judge’s election committee post material on the committee’s page if the material did not otherwise violate the Code of Judicial Conduct?
- Could the inquiring judge’s election committee establish a social networking site where lawyers — including those who might appear before the judge — could list themselves as “fans” or supporters of the judge’s candidacy so long as no one controls who is permitted to be listed as a supporter?
The Committee opined that Canon 2B allows judicial participation in a “subject matter” forum, and that:
[In] order to fall within the prohibition of Canon 2B . . . three elements must be present.
- First, the judge must establish the social networking page.
- Second, the site must afford the judge the right to accept or reject contacts or “friends” on the judge’s page, or denominate the judge as a “friend” on another member’s page.
- Third, the identity of the “friends” or contacts selected by the judge, and the judge’s having denominated himself or herself as a “friend” on another’s page, then must be communicated to others.
It is this selection and communication process, the Committee believes, that violates Canon 2B, because the judge, by so doing, conveys or permits others to convey the impression that they are in a special position to influence the judge.
Based upon the inquiring judge’s explanation of Twitter, Canon 2B would not preclude a judge running for re-election from maintaining a Twitter account. The inquiring judge seeks to use a Twitter account for campaign “tweets” such as judicial philosophy, campaign slogans, and blurbs about the candidate’s background.
Twitter has several dimensions, however, in addition to those described in the judge’s inquiry. The site’s primary objective is to enable an account holder to share information to a population limited only by the number of Twitter account holders. Upon setting up a Twitter account, users have the option to control who sees their updates. True, as the inquiring judge states, users do not select followers. A user can, however, block specific followers, preventing those blocked from seeing tweets and other traffic on the user’s account. In addition, Twitter enables users to mark tweets as “favorites,” to create lists of Twitter users and subscribe to lists created by other users.
If a user posts a tweet that is complimentary or flattering to the inquiring judge, the judge could re-tweet it or mark it as a “favorite.” No matter how innocuous the tweet, this could convey or permit the tweeter to convey the impression that the tweeter is in a special position to influence the judge.
A judicial Twitter account user could create a list of followers. Those listed could be perceived to be in a special position to influence the judicial candidate. The inquiring judge could avoid this appearance by not creating any lists of followers. Still, if the inquiring judge were to appear on another Twitter user’s list of followers, that follower could create the impression of being in a special position to influence the judge. Twitter has a “direct message” feature that enables users to send messages directly to and receive messages directly from their “followers.”
Canon 5A, particularly subsections 5A(1), (2) and (5), beg consideration:
Extrajudicial Activities in General. A judge shall conduct all of the judge’s extrajudicial activities so that they do not:
(1) cast reasonable doubt on the judge’s capacity to act impartially as a judge;
(2) undermine the judge’s independence, integrity, or impartiality;
. . . .
(5) lead to frequent disqualification of the judge.
A judge’s Twitter account creates an avenue of opportunity for ex parte communication. Assume a Twitter user is a party who has a case assigned to a judge with a Twitter account. The party could send the judge a tweet about the case. The judge unwittingly would receive the tweet. The only way to avoid receiving the tweet would be if the judge knew the party’s Twitter account name, and exercised Twitter’s blocking option when the judge set up the judge’s Twitter account. Thus, although Twitter does not fall squarely on all fours of Fla. JEAC Op. 2009-20, it has features which could prove problematic as a campaign tool for a judge running for re-election.
The inquiring judge’s second inquiry suggests as an alternative that the campaign manager or another person connected with the judge’s re-election campaign set up the Twitter account. This is a more prudent option in that it would eliminate the potential for ex parte communication. Favorite tweets would not be selected by the judge, but by the campaign manager or committee. Caution should be applied, however, if any follower lists are created in the account.
In sum, the inquiring judge will not be in violation of Canon 2B if a Twitter account is created in that judge’s name. The most sensible way to use Twitter as a campaign tool would be for the judge’s campaign committee or manager to create and maintain the account.
Sunday, July 21, 2013
A magistrate from Pottawattamie County has been reprimanded by the Iowa Supreme Court.
The magistrate, who is permitted an outside practie of law, violated ethical standards by appearing in a business advertisement in his judicial robe.
The court noted that the ads ran in multiple venues for over a year and that the magistrate otherwise has had a distinguished judicial career. (Mike Frisch)
Tuesday, July 9, 2013
The Massachusetts Appeals Court has resolved the following issue:
The issue presented is whether a judge who sued her former law firm for unpaid compensation and lost should have recused herself from cases involving that firm, four years after the Supreme Judicial Court decided the case. Applying the two-part test set forth in Lena v. Commonwealth, 369 Mass. 571, 575 (1976), the judge concluded that she held no actual bias, and that no reasonable person would question her impartiality. We agree that there is no basis for recusal on the grounds of actual bias. However, given the protracted litigation, the judge's personal involvement in the lawsuit, the amount at stake, and the judge's inconsistent rulings on prior recusal motions, "an objective appraisal of whether this was 'a proceeding in which [her] impartiality might reasonably be questioned' " compels the conclusion that recusal was warranted. Ibid., quoting from S.J.C. Rule 3:25, Canon 3(C)(1)(a), 359 Mass. 841 (1972). Accordingly, we reverse the judge's orders denying recusal and remand these consolidated cases for further proceedings.
We have no reason to question the judge's good-faith belief that she could decide these cases fairly and impartially. However, even the appearance of partiality undermines confidence in the judicial system. In light of the judge's long-term relationship with [her former law firm] Morrison, the subsequent protracted litigation, her active participation in that dispute, the amount of the claim at stake, and her inconsistent rulings on prior recusal motions, we conclude that a reasonable person might question her impartiality. We therefore reverse the orders denying the judge's disqualification and remand for further proceedings before other judges. The stays previously entered in these matters are lifted.
The case is Commonwealth v. RV Morgan, LLC, decided today. (Mike Frisch)
Monday, July 1, 2013
The inmate had completed his second year of law school when he drove a boat into another boat on Skaneateles Lake, causing the deaths of two people.
The judge has served in several positions since 1993 and is presently a justice of the Appellate Division for the Fourth Judicial Department.
Her letter to the Division of Parole was written on her judicial stationary, called the inmate her "friend" (but did not mention that she had never met him) and supported his release.
Parole was nonetheless denied.
The commission concluded that the "unsolicted letter...was inconsistent with well-established ethical standards prohibiting a judge from lending the prestige of judicial office to advance private interests." (Mike Frisch)
Wednesday, June 19, 2013
The Oklahoma Supreme Court has lifted a disability suspension and imposed a public censure of an attorney who entered a guilty plea to two drug-related misdemeanors and felony possession of methamphetamine.
He was suspended in June 2012 after his arrest.
The court recites that
The Respondent testified that he attended law school at the University of Michigan and went to work for the Crowe & Dunlevy law firm in Tulsa after graduation. Later he moved to Idabel, Oklahoma, and began working for LeForce & McCombs. In 2008, he and Kevin Sain set up their own law office in Idabel. They practiced together until 2010. The Respondent testified that his problems began in February 2010 when his brother-in-law committed suicide on the back patio of the family home, using the shotgun Respondent had bought his son for a birthday present. The Respondent and his wife suffered a tremendous amount of guilt and their marriage suffered. The Respondent testified that he became depressed and disillusioned. He had been prescribed hydrocodone for back pain resulting from a football injury in high school. He took it periodically for pain without any trouble. After the suicide of his brother-in-law, he began taking it more and more frequently and he became addicted to it. He then began using methamphetamine to counteract the effects of the hydrocodone.
Following his arrest, the attorney went into a detox program after an intervention by fellow attorneys. He was asked to leave for using valium and methamphetamine.
The court concluded that he has been drug-free and compliant in recovery for more than four months.
The Respondent admits that his actions brought discredit upon the Oklahoma Bar Association and he expressed shame and remorse for his actions. The Respondent was the city judge for Idabel, Oklahoma. Headlines in the local newspapers referred to "City Judge Charged with Drug Allegations" and "City Judge Resigns at Removal Hearing." His "mug shot" appeared on the front page of local newspapers. He agrees with the discipline recommended by the trial panel.
A dissent notes that the attorney remains on felony probation and would defer consideration of reinstatement until he completes the five-year term of probation. (Mike Frisch)
A New York town court justice has resigned in the face of allegations that he
publicly and physically confronted a fifteen-year-old boy who was riding his bicycle in [his] neighborhood, yelled profanities, took possession of and damaged the bicycle, and recommended to a local landlord that he evict a neighborhood family because of their relationship with the boy.
A stipulation reflects that the justice called the boy a number of names such as "damn thief," a "troublemaker", and two obscene names.
He then pushed the boy off the bike, put it in his car and heaved it into a front yard causing damage.
He continued to use obscene language and "sat on the stone wall in his front yard with a baseball bat, repeatedly banged the bat into the ground, told used more obscene language. (Mike Frisch)
Thursday, June 13, 2013
The New Mexico Supreme Court has approved stipulated discipline and imposed a public censure of a magistrate judge.
The judge had sought to intervene on behalf of his stepson, who was in custody. He engaged in an ex parte contact with the responsible judge and assured the judge that his stepson was not a flight risk.
In addition to the censure, he was suspended without pay for 90 days with 60 days deferred.
Also, he must complete, at his own expense, an online course offered by the National Judicial College titled Ethics and Judges: Reaching Higher Ground. (Mike Frisch)
The Tennessee circuit court judge chaged with ethics violations arising out of a visit to the home of a party in a parenting dispute has filed an answer denying any misconduct.
The answer asserts that the visit was done with the consent of the self-represented parties and was in aid of making an informed decision on the merits.
Further, the answer contends that a judge has inherent authority to conduct such a view.
Our prior coverage is linked here. (Mike Frisch)
Friday, May 31, 2013
The Arkansas Judicial Ethics Advisory Committee has issued an opinion disapproving of a proposed filming in Hot Springs District Court:
...we are here presented with a production company that wishes to make a series of pograms about a particular court, syndicate those programs, perhaps nation-wide, and make a profit from "reality television."
The committee signalled disapproval where the project was motivated by profits rather than a desire to educate. Further, it might be undignified.
Possible titles: "America's Busiest District Court" and "Located in America's Most Dangerous City." (Mike Frisch)
A recent judicial ethics opinion from South Carolina deals with the following facts:
The judge is currently a part-time Municipal Court Judge and a practicing attorney. The judge has been asked to represent, at post-seizure hearing in the Magistrate’s Court, the owners of video gaming machines which were seized by City police. The judge inquires into the propriety of accepting such representation.
A continuing part-time judge is not required to comply with Canon 4G
that prohibits a judge from practicing law. Rule 501, Application
C(1)(b), SCACR. A part-time judge may practice law, subject to
several limitations under the Code of Judicial Conduct. “A continuing
part-time judge shall not practice law in the court on which the judge
serves or in any court subject to the appellate jurisdiction of the
court on which the judge serves, and shall not act as a lawyer in a
proceeding in which the judge has served as a judge or in any other
proceeding related thereto.” Rule 501, Application C(2), SCACR.
Canon 2 mandates that judges avoid the appearance of impropriety in
their activities and conduct themselves “in a manner that promotes
public confidence in the integrity and impartiality of the judiciary.”
Rule 501, SCACR.
Here, the Magistrate’s Court is not subject to the appellate jurisdiction of the City court and the judge would not be acting as a lawyer in proceeding in which he had served as judge. However, as we noted in Opinion 14-2002, it would be improper for a part-time municipal judge to act as an attorney in representing a client in a matter investigated and brought by the municipality in which he serves. This would not promote public confidence in the integrity and impartiality of the judiciary. Here, the City police investigated and seized the video gaming machines. Thus, even though the matter is now pending before the Magistrate’s Court, it would be improper for the municipal judge to represent the owners of those machines. The involvement of the City police could intrude on the “public confidence in the integrity and impartiality of the judiciary” and therefore the judge’s representation of the owners would violate Canon 2.
Wednesday, May 29, 2013
The Pennsylvania Court of Judicial Conduct has suspended with pay a Philadelphia traffic court who is the subject of a felony indictment.
The judge had been suspended without pay by the Pennsylvania Supreme Court. Here, the court affirmed that it had the authority to determine whether suspension (with or without pay) should be imposed.
The court chided the Judicial Conduct Board for the "grossly inaccurate representation" that the judge was indicted in 68 counts. The number is actually just three.
A concurring opinion provides some history of the court. The concurring opinion notes that the error in the board's petition was promptly corrected.
In an unrelated matter of a judge who allegedly dismissed her own parking tickets, the court suspended without pay and directed return of payments made after February 11, 2013. (Mike Frisch)
Friday, May 24, 2013
A judge who was paid in excess of the statutory cap on salary paid to judges employed by more than one municipality has been censured by the Utah Supreme Court.
The payments were made over the period from 2009 to 2011.
In addition to the censure, the judge must make restitution of the amounts in excess of the cap.
The court held that the judge had not preserved his argument that the cap was unconstitutional. (Mike Frisch)
Thursday, May 23, 2013
A Tennessee circuit court judge is the subject of recently-filed charges filed by Disciplinary Counsel with the Court of the Judiciary.
The charges allege that the judge was responsible for a matter involving post divorce custody and visitation rights. It is further alleged that
...[the judge] undertook an independent investigation of the conditions present at the residence of the father, by making a personal visit to the residence of the father, inspecting the home of the father, and later utilizing her personal observations in making rulings and referring to matters concerning parenting issues.
Thursday, May 16, 2013
A judicial candidate has been publicly reprimanded and barred from judicial office for five years by the Indiana Supreme Court.
The candidate ran for a circuit court judgeship against an incumbent. The judge had modified the sentence of a convicted felon.
In a newspaper article, the candidate was quoted falsely claiming that the judge and the felon were "boyhood friends." A press release from her campaign suggested that the judge's "work was paid for by the taxpayers, so it wasn't free for anyone but a convicted murderer [the released felon]."
After his release, the felon committed crimes in Ohio. The candidate claimed he would have been in prison but for the actions of the judge. She refused to correct the suggestion after the Commission on Judicial Qualifications "advised her that it appeared she was incorrect" in that suggestion.
The court approved the settlement agreement submitted by the candidate and the commission. (Mike Frisch)
Friday, May 10, 2013
The Massachusetts Supreme Judicial Court has ordered that the Barnstable Clerk-Magistrate be removed from office:
The findings by the hearing officer, as adopted by the committee, provide sufficient cause for Powers's removal and we conclude, after considering the totality of the circumstances, that the public good requires his removal. We do not reach this conclusion lightly; we recognize that removal "strips the individual of the enjoyment of a position of distinction" to which he had been appointed by the Governor and approved by the Governor's Council. See Attorney Gen. v. Tufts, supra at 490. Our reasons for reaching this conclusion are best summarized by a statement made by Judge O'Neill, the presiding justice of the court where Powers presided as clerk-magistrate, during his testimony at the hearing: "I just want the clerk to do his job." The record demonstrates that from the date he started work at the Barnstable District Court through the time of the hearing, Powers fundamentally failed to do his job. He was not there during the busiest time of day for the clerk's office, leaving the office without necessary leadership and an essential helping hand, apparently failing to recognize that one essential component of his job was to show up when the work needed to be done. He continually abused his authority as clerk-magistrate by his mistreatment of litigants, court personnel, and even the presiding justice of the court. He failed to render timely decisions and sought to cover up his failure by asking employees under his direction to change the date of decision to the date of hearing. He failed to meet his obligation to ensure that monies collected by the clerk's office were deposited daily in a local bank, and effectively denied litigants the opportunity timely to appeal his denial of the issuance of a criminal complaint at a show cause hearing by directing his staff not to send notice of his denial. We need not consider whether any of these findings involves some degree of moral turpitude because we do not accept Powers's suggestion that he can keep his job, despite failing effectively to perform it for more than four years, as long as he avoids acts of moral turpitude.
Cape Cod Times has this coverage.
The case is In the Matter of Clerk-Magistrate Robert Powers. (Mike Frisch)
Thursday, May 9, 2013
A magistrate who resigned from judicial office has been publicly reprimanded by the South Carolina Supreme Court.
In one self-reported matter, the magistrate set bond in a criminal matter, reduced the bond to ten bucks and posted it with his own funds.
There were other violations as well. (Mike Frisch)
Wednesday, May 8, 2013
The New York State Commission on Judicial Conduct has issued a report on the ethical issues that relate to the use of judicial license plates.
The Commission intends to "generate a serious discussion" of the issue, reaching the conclusions that the use of such plates "does not per se violate any ethics rule or create an appearence of impropriety."
However, asserting judicial status "to avoid the consequences of a lawful traffic stop" can result in sanctions and a judge should so advise family and friends who operate the vehicle. If a judge uses a dashboard placard to park illegally, such conduct "may subject the judge to a confidential caution or public discipline."
Commission member Emery dissented and felt that the "milquetoast" report was "ducking" the issues.
The press release of the Commission is linked here. (Mike Frisch)