Tuesday, April 14, 2015
A recent opinion from the South Carolina Advisory Committee on Standards of Judicial Conduct
ADVISORY COMMITTEE ON STANDARDS OF JUDICIAL CONDUCT
OPINION NO. 1-2015
RE: Propriety of a circuit court judge presiding over matters in which the judge’s law clerk’s father and his partner frequently appear before the circuit court.
A circuit court judge has expressed interest in hiring a law clerk for the 2016-2017 year. The potential law clerk’s father is an attorney who frequently appears in the judge’s court in both civil and criminal cases, as does the father’s law partner. The judge inquires as to whether the judge can preside over matters in which a law clerk’s father or his law partner appears.
A circuit court judge need not automatically disqualify himself or herself from a proceeding in which the attorney appearing before the judge is the father of the judge’s law clerk or the father’s law partner.
Canon 3.E.(1)(d) states that a judge should disqualify himself or herself where the judge’s impartiality might reasonably be questioned, including where “the judge’s spouse or person within the third degree of relationship to either of them, or the spouse of that person” is an attorney in the proceeding or is a material witness in the proceeding. In addition, Canons 1 and 2 of the Code of Judicial Conduct require a judge to avoid the appearance of impropriety and act in a manner to promote the public’s confidence in the integrity and impartiality of the judiciary.
In Opinion 10-2011, this Committee considered Canon 3E in determining the propriety of a Circuit Court Judge presiding where the law clerk’s uncle was the senior prosecuting solicitor. We determined that while such a relationship could create the appearance of impropriety, this appearance of impropriety does not exist for uncontested and default matters, and thus the possibility of disqualification only arose in contested cases. However, we also found that disqualification was not automatically required in all contested cases and found that the judge could utilize the remittal procedure to avoid the appearance of impropriety.
The Committee finds that the logic of that opinion should apply here. The judge should prevent the law clerk from participating in or working on any proceedings in which the clerk’s father or his law partner appear, which would eliminate any potential conflict.1 Because it is only the father of the judge’s law clerk who will appear as an attorney in a proceeding before the judge and not “the judge’s spouse or person within the third degree of relationship to either of them, or the spouse of that person,” Canon 3.E.(1)(d) does not require disqualification of the judge.2 However, the judge must still avoid the appearance of impropriety and act in a manner to promote the public’s confidence in the integrity and impartiality of the judiciary as required by Canons 1 and 2. Thus, in matters such as contested motions or trials in which the father or his law partner appear, the judge must fully disclose the relationship of the judge’s clerk and the father or his law partner.
In conclusion, the possibility of disqualification only arises in contested cases. The judge should require his law clerk to abstain from involvement, though the judge is not automatically disqualified. However, the judge should follow the remittal procedure and disclose the relationship of the judge’s clerk and the father or his law partner.
2 In Opinion 10-2011, this Committee found that Canon 3.E. (1)(d) allows a judge to prohibit a law clerk from working on a case and, thus, the judge himself would not be disqualified. However, in light of the more specific Rule 506, governing disqualification of a law clerk, the judge has no discretion in whether or not to allow a law clerk who is related by blood or marriage to a party or attorney to work on a matter. Thus, to that extent, Opinion No. 10-2011 is overruled, and a judge may not refuse to allow disqualification of a law clerk under those circumstances.
Thursday, April 9, 2015
A judge who was stopped for speeding on her way to an interview with the Judicial Nominating Commission was reprimanded by the Florida Supreme Court.
Her driving record had been an issue in an earlier interview with the commission.
From a stipulation
During an interview on March 28, 2013, the JNC questioned Judge Recksiedler regarding her driving record. Then, on March 17, 2014, while driving to another interview with the 5th DCA JNC, the Florida Highway Patrol stopped Judge Recksiedler and issued her a citation for speeding. The traffic stop caused Judge Recksiedler to be late for her interview with the JNC.
In her opening statement to the JNC on March 17, 2014, Judge Recksiedler addressed the Commission’s previously expressed concerns about her driving record by stating that she “takes its concerns about her driving seriously.” At no point during or after her interview, however, did Judge Recksiedler inform the members of the JNC that she had received a speeding ticket that morning...
Later, on September 18, 2014, Judge Recksiedler had a third interview before the 5th DCA JNC. That interview was videotaped by a local news organization. The link to the interview is: http://volusiaexposed.com/jnc/jnc9182014.html. During this interview, a Commissioner asked Judge Recksiedler about her driving record. “Judge, you came before us in March earlier this year and you addressed some of the commission’s concerns regarding your driving record and I was wondering how that was going. Have you had any stops this year?”
When testifying before the JQC investigative panel, Judge Recksiedler explained that she knew that each member of the JNC had background information that included her traffic record, including her March 17 stop. She misunderstood the question to be about stops since her March 17 JNC appearance when she had received the citation in route to the interview and as referenced by the questioner. Thus, Judge Recksiedler testified, she answered “no.” While her answer may not have been intentionally false, it was confusing and misleading. Judge Recksiedler acknowledges that she should have mentioned the March 17 traffic stop to avoid the confusion and to ensure that the commission was aware that she was not trying to avoid the issue.
Candor as a judge is clearly critical. The JQC determined that Judge Recksiedler’s lack of candor may not have been “intentionally false” but it was “confusing and misleading.” The JQC further determined that omitting important information requested from the Fifth District Court of Appeal Judicial Nominating Commission and then later providing inaccurate information regarding the traffic stop “was inappropriate.” We agree with the JQC that the incompleteness and inaccuracy of the responses constitutes a lack of candor amounting to an ethical violation where, as here, the statements are misleading.
Reprimand was appropriate because the judge accepted responsibility and showed remorse.
Details from the Orlando Sentinel. (Mike Frisch)
Tuesday, April 7, 2015
A person nominated by the Governor for a judgeship does not have a right to assume the bench if the appointment process is not completed, according to a decision of the full Massachusetts Supreme Judicial Court.
The plaintiffs, Michael J. McCarthy and Mary-Ellen Manning, filed a complaint in the county court in July, 2013, against the Governor and the Secretary of the Commonwealth, seeking to establish that McCarthy had been nominated, confirmed, and appointed to a Massachusetts judgeship in 2012, and that he is therefore entitled to a commission for that office.
The Governor's appointment of an individual to judicial office becomes effective "when the last act to be done by the [Governor is] performed." Marbury v. Madison, supra. See 1 Op. Attorney Gen. 140, 141 (1894). At a minimum, this requires that the Governor communicate unequivocally his determination, informed by the Council's advice and consent, to exercise the power of appointment. Rep. A.G., Pub. Doc. 12, at 96 (1972) ("Appointment occurs, of course, when the Council has given its advice and consent to the nomination and the judicial commission has been issued" [emphasis added]). The appointment, like the nomination, is highly discretionary, and it is for the Governor and the Governor alone to decide. There is nothing ministerial about the Governor's decisions to nominate and appoint. Contrast Rep. A.G., Pub. Doc. 12, at 107 (1984) (describing Secretary's role in judicial appointment process; stating that Secretary "functions in a . . . ministerial manner with respect to gubernatorial appointments"). As stated in Opinion of the Justices, 190 Mass. at 619-620, when the Governor has the power to act, "[t]he act, first of all, and afterwards for all time, is the act of the Governor."
There is nothing in the record before us to suggest that the Governor took action to appoint McCarthy to the vacant judgeship at any time. To the contrary, the evidence is that the Governor did not proceed with an appointment in any fashion after the vote of the Council on McCarthy's first nomination on September 26, 2012, or after Manning's letter on October 17. Instead, he resubmitted the nomination to the Council. Likewise, after the Council's vote on the second nomination, the Governor indicated that he considered the matter closed. Thus, even if we were to assume for the sake of discussion, as the plaintiffs argue, that the votes of the councillors at the September 26 meeting, supplemented with Manning's purported vote by letter to the Governor on October 17, combined to constitute the requisite "advice and consent" and the required number of votes in favor of McCarthy's nomination, we conclude nevertheless that McCarthy did not validly obtain a judgeship.
The full court agreed with a single justice that mandamus and other relief was not available. (Mike Frisch)
Monday, April 6, 2015
A New York Town Court Justice (who is not an attorney) was admonished for his handling of cash put up as a bond
After conducting a late-night arraignment in Doe, a case that was returnable in a neighboring town court, respondent did not deposit the $500 cash bail into his court account, as required by the relevant rules. Instead, he personally delivered the money later that day, along with the court records of the matter, to the Town of Wayne municipal building, leaving the envelope marked "BAIL $500.00 CASH" with an unidentified individual. Though it is unclear in the record before us whether the funds were received or deposited by the Wayne Town Court, respondent's own conduct inconsistent with his duty to safeguard court monies entrusted to his care. His departure from the mandated procedures placed the funds at risk and gave rise to questions and uncertainty as to how the money was handled all of which could have been avoided if he had deposited the bail into his court account as required. And at the very least, it was ill-advised to leave a cash-filled envelope with an unidentified person at the Wayne municipal building. Respondent's failure to keep any records of the case, or to record the arraignment, was also a violation of the procedural requirements and compounds the appearance of impropriety.
The Commission on Judicial Conduct imposed the sanction. (Mike Frisch)
Friday, April 3, 2015
A Delaware Master in Chancery has granted a motion to recuse her in light of the "appearance of impropriety"caused by her former association with a law firm involved in the case.
The mere involvement of [the law firm] Potter Anderson as counsel in a proceeding before me indisputably would not create the appearance of impartiality. Here, however, Mr. Greenspan seeks to amend the pleadings to add the firm and three of its attorneys as defendants and impose personal liability on them. I am confident that – as a subjective matter – I could hear this action free from bias or prejudice, even if Potter Anderson or various of its attorneys are added as defendants. I worked for the firm for approximately seven years, left on amicable terms, was not a partner, and do not have any continuing financial interest in the firm or any exposure to liability the firm may incur. Nonetheless, I have concluded that – under these circumstances – there would be an appearance of bias in presiding over a matter that could result in a finding of liability for my former firm or several attorneys with whom I closely worked while employed there.
I am aware– and deeply regret –that recusing myself from this case will impose additional work on one of my colleagues. The decision is not one I relish or make lightly. The importance, however, of maintaining both the fact and appearance of an unbiased judiciary must, in my view, take precedence. While Potter Anderson or its attorneys are – or may be – defendants, I believe there is a sufficient basis for Mr. Greenspan to question my impartiality.
When I was recused from an assigned matter at the Office of Bar Counsel, I took a comparable case from the colleague who replaced me. That cures any regrets. (Mike Frisch)
Wednesday, April 1, 2015
The Ohio Supreme Court has publicly reprimanded a judge for a drunk driving conviction
On January 12, 2013, Marshall was involved in a one-car accident in which he struck an embankment and flipped his vehicle. He was later arrested and charged with operating a motor vehicle while intoxicated. On March 8, 2013, he pleaded guilty to the charge and was sentenced to those days suspended. He was placed on nonsupervised probation for up to 60 months and ordered to pay a $550 fine plus court costs. The parties stipulated that Marshall’s conduct violated Jud.Cond.R. 1.1and 1.2, and relator agreed to dismiss the alleged violation of Prof.Cond.R. 8.4(h).
The court noted steps taken by the judge to address his alcoholism. (Mike Frisch)
Thursday, March 26, 2015
The New York Court of Appeals has suspended a Green Island Town Court judge recently charged with domestic violence.
CBS 6 had a report on the charges
The Albany County Sheriff's office have arrested 45 year-old Jeffrey Dorrance, charging him with misdemeanor Criminal Obstruction of Breathing.
Police say they were contacted by Green Island Police, citing a potential conflict of interest with Dorrance serving as a judge.
Albany Police say the charges stemmed from a physical domestic violence incident that occurred over the weekend.
Dorrance was arraigned and released on his own recognizance. He is due back in court on Tuesday.
Tuesday, March 24, 2015
A recent opinion from the Florida Judicial Ethics Advisory Committee
May a judge, as a member of the Board of Directors of a District Court of Appeal Historical Society, encourage others to participate in a walk/run fundraiser that is sponsored by a bar association when the funds will support the bar association’s pro bono project?
ANSWER: No, unless the solicitation is limited to judges over whom the judge exercises no supervisory or appellate authority.
May a judge participate in a walk/run fundraiser as a team captain and coordinate logistics for the team, such as snacks and T-shirts, when the project supports the bar association’s pro bono projects?
Notwithstanding the Code’s prohibition on direct solicitation of funds, the Code encourages other participation in activities involving the law, the legal system, and the administration of justice, when the funds are used for a law related purpose. Therefore, pursuant to Canon 4D, the inquiring judge may be involved in planning the event, may be featured in the program as a team captain, and may permit the judge’s title to be used in conjunction with the event. Furthermore, the Code permits active participation in the event, such as participating in the walk/run itself and providing logistical support, such as arranging for T-shirts and providing concessions.
Therefore, because this is a function being sponsored by a law related organization, the fundraiser concerns the law, the legal system, or the administration of justice, and the funds are used for a law related purpose, the inquiring judge may participate as a team member and team captain and may otherwise actively participate in the event, but may not personally or directly solicit others to participate unless such persons are other judges over whom the judge exercises no supervisory or appellate authority.
Monday, March 23, 2015
The Florida Supreme Court has agreed to a 30-day suspension of a judge, according to this article in the Orlando Sentinel.
Judge Debra Krause on Friday agreed to a 30-day suspension for using her Facebook page to criticize the lawyer who defeated her husband, Mitch Krause, in a judicial race in November.
The Sentinel's Rene Stutzman had this earlier report
The Florida Supreme Court on Wednesday recommended that Seminole County Judge Debra Krause be suspended without pay for 30 days for a Facebook post that suggested the woman who defeated her husband in a judicial election was a liar.
It is on top of a $25,000 fine the court wants imposed on Krause for a different set of violations, all associated with her 2012 campaign for office.
In November, the state agency that polices judges, the Judicial Qualifications Commission, reached the equivalent of a plea deal with Krause and agreed to combine the two and impose no new punishment.
The sanctions they had agreed to for the first breach – a $25,000 fine and public reprimand – would cover both, the two sides said.
The court said Wednesday that the penalty for the first breach would remain the same, but she should be suspended without pay for a month for what she wrote on Facebook.
On Aug. 5 she urged people to flood the Facebook page of now-Circuit Judge Susan Stacy, who was running against Krause's husband, Mitchell Krause, with messages accusing her of misrepresenting his role in the campaign violations Judge Krause admitted making in 2012.
Those include Judge Krause reporting that she loaned her campaign up to $82,000 when, in reality, the money was a gift from her husband.
Judge Krause did not return a phone call Wednesday.
Central Florida judges are rarely suspended. In 2010 Orange-Osceola Circuit Judge N. James Turner was suspended with pay for a year and a half by then-Chief Judge Belvin Perry Jr. while Turner was investigated for repeatedly hugging an Osceola County courthouse deputy clerk.
The Florida Supreme Court ordered him suspended without pay the following year then removed him from the bench.
In a separate case, the JQC recommended that Orange-Osceola Circuit Judge Tim Shea be suspended without pay for two months in 2012 because of complaints that he bullied attorneys, but the high court concluded that a public reprimand was sufficient.
In the cases of Judge Krause, Wednesday's action by the high court may not be the final word.
In its order, it gave her and the JQC 30 days to accept or reject the proposed suspension.
Stutzman also had the post itself
"Susan Stacey [sic] is again misrepresenting. … to try and make Mitch look unethical and without integrity. Could you all take a minute and POST on Ms. Stacey's [sic] campaign site that having ethics and integrity means TELLING THE TRUTH! Please post as soon as possible. I want to flood the post!"
The judge closed with, "THANK YOU and have an ethical day!!!!"
Sunday, March 22, 2015
The Louisiana Supreme Court has ordered a 30-day suspension of a Shreveport City judge who had abused her contempt power against a city prosecutor with whom she had an adversary relationship prior to assuming judicial office.
The prosecutor's office instructed its attorneys to interact with the judge through a designated person. The contempt came because the city prosecutor followed that directive.
Judge Sims’ actions resulted from her personal feelings towards Ms.Gilmer and her perception that Ms. Gilmer lacked respect for her. But Judge Sims’ actions cannot be viewed in a vacuum. We must give some consideration to the context of Judge Sims’ actions in light of her adversarial relationship with Ms. Gilmer, and in light of Ms. Gilmer’s actions. As a judge, it is certainly understandable that Judge Sims was frustrated regarding Ms. Gilmer’s failure to agree to a meeting. And, the record supports Judge Sims’ assertions that Ms. Gilmer failed to directly respond to some of her requests for a meeting. While Judge Sims’ conduct cannot be condoned, it is not unreasonable that Judge Sims felt ignored and disrespected.
The judge got mad and then got even
The Commission found that Judge Sims committed bad faith legal errors by holding Ms. Gilmer in contempt for conduct that was not contemptuous and for sua sponte dismissing the fifteen criminal cases without legal authority to do so. Based on Judge Sims’ bad faith legal errors, the Commission found by clear and convincing evidence that Judge Sims failed to personally observe a high standard of conduct so as to preserve the integrity and independence of the judiciary, in violation of Canon 1; failed to respect and comply with the law and to act in a manner that promotes public confidence in the integrity and impartiality of the judiciary, in violation of Canon 2A; and failed to be faithful to the law and maintain professional competence in it, in violation of Canon 3A(1). We agree.
The court rejected the Judiciary Commission's proposed 90-day suspension.
Justice Guidry dissented on the sanction
I dissent in part from the majority’s imposition of a suspension of thirty days without pay. Because this was a relatively newly-elected judge faced with a somewhat unusual directive from the City Attorney that assistant city prosecutors could not meet with city court judges to discuss administrative matters except upon notice to the City Attorney, and because the judge has accepted responsibility and learned from her misconduct, I would simply censure the judge pursuant to La. Const. art. V, § 25(C), and order her to reimburse the Judiciary Commission’s costs.
Tuesday, March 17, 2015
Disciplinary charges have been filed by the North Carolina State Bar against a Superior Court judge with jurisdiction over Kill Devil Hills, made famous by the Wright brothers.
The judge's son and companions had an encounter with KDH police that did not lead to criminal charges.
The judge allegedly summoned government officials to a chambers meeting after the son was detained, expressed anger over the detention, told the official that he had the power to remove them from office, became "embroiled in the affairs of the KDH police department," accepted ex parte complaints, issued orders without any action or petition pending, and other improprieties.
The Daily Advance has details on the feud.
Reflector.com noted a judicial reprimand imposed on the judge. (Mike Frisch)
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.