Friday, April 8, 2016

Public Discipline For Part-Time Magistrate

A pert-time judicial magistrate has been reprimanded by the Iowa Supreme Court.

Magistrate Sevcik, acting in his capacity as a private attorney, represented a client in district court for a hearing on a motion for temporary placement of a child. Prior to the hearing, he retrieved four criminal and six domestic abuse court files from the office of the clerk of court. He had notified the clerk of court in advance that he wanted the files and intended to ask the judge to take judicial notice of the contents of the file during the course of the hearing. Magistrate Sevcik was uncertain whether he was on duty as a magistrate when he requested the files, but was not on duty when he retrieved them from the clerk’s office. He knew two of the criminal files included deferred judgments and had been expunged. These files were marked as expunged. He understood the expunged files contained confidential documents and were only available to specific persons and agencies, including magistrates...[He] believed the district judge presiding over the hearing could take judicial notice of all the files, and he requested such judicial notice during the hearing, placing them on the courtroom bench. In addition, Magistrate Sevcik used a document from one of the expunged files to impeach a witness during the hearing.

The court affirmed some findings of misconduct

A judge who acquires nonpublic information in a judicial capacity and uses the information for purposes unrelated to the judge’s judicial duties can undermine the judge’s independence, integrity, and impartiality. Here, the conduct by Magistrate Sevcik was in the nature of abuse of power and projected a willingness to misuse judicial authority to benefit his private practice of law.

On sanction

It is unnecessary for us to decide if we should adopt a public admonition as a form of judicial discipline. Considering the nature of the conduct, this case does not present a need for us to provide instruction to magistrates on how to use their authority to access expunged records. The misuse of authority in this case was not the result of a misunderstanding, but a clear violation of the rule against using judicial authority for purposes unrelated to the work of a magistrate. We agree with the Commission [on Judicial Qualifications] that a public reprimand is the appropriate sanction. It meets the goals of imposing sanctions and is supported by the relevant circumstances in the case.

(Mike Frisch)

April 8, 2016 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, April 6, 2016

Village Court Justice Should Be Removed: Told Co-Judge To "Have A Stroke And Die"

A justice should be removed from office , according to the New York Commission on Judicial Conduct.

The village court justice also is an attorney.

One count involved his abuse of a student intern and others

On repeated occasions over several years, respondent abused his judicial position in order to bully, harass, threaten and intimidate his court staff, his co-judge and other village officials and employees with whom he dealt in an official capacity. Without lawful basis, he repeatedly threatened such individuals with contempt or arrest over routine personnel or administrative issues in his court. On a frequent basis, he also subjected them to demeaning treatment, insults and angry diatribes in response to perceived disrespect or shortcomings in the performance of their duties and, in one instance, exhibited a shocking display of physical aggression in the court clerk's office. Such "a pattern of injudicious behavior and inappropriate actions ... cannot be viewed as acceptable conduct by one holding judicial office" (Matter of VonderHeide, 72 NY2d
65 8, 660 [ 1988]) and warrants his removal from judicial office.

Epitomizing respondent's misconduct is his response to the hiring of a college student to work in the court clerk's office in the summer of 2012. In an incident that escalated into a melee, respondent, who was displeased because the student, Maxary Joseph, had been hired by the mayor without respondent's input or approval, acted in a manner that failed to show "even a modicum of sensitivity or self-control so vital to the demands of his position" (Matter of Kuehnel, 49 NY2d 465, 469 [1980]) as he attempted to have the student removed from the premises, threatened him with arrest and contempt, and made similar threats against others who attempted to thwart respondent's efforts to effectuate the arrest.

 Initially, after ordering Mr. Joseph to leave the office and threatening him with arrest when he returned at the mayor's direction, respondent called the police and told them he had held an individual in contempt (a statement respondent later admitted was untrue) and that he wanted him arrested for trespassing; he also told the police "the mayor may be next." Then, with a commitment order in hand, he went to the police office in the municipal building, announced that he was sentencing an individual to jail for 15 days, and said he would hold the police in contempt unless they assisted him. He called the sheriffs office and said he wanted the matter investigated, summoned an offduty court officer to the court for assistance, and directed a court clerk to set up the recording equipment in the courtroom. When his co-judge attempted to intervene, respondent threatened him with contempt and told him to "have a stroke and die."   Respondent also ignored the pleas of the court clerks, who were shocked and frightened by respondent's evident rage as he screamed at Mr. Joseph and, while standing next to the student's desk, ordered him into the courtroom and began to advise him of his rights. In an alarming display of injudicious temperament, respondent grabbed Mr. Joseph's arm and attempted to pull him out of his chair, yanking him with such force that the chair began to slide toward respondent. When police, who had rushed to the clerk's office after hearing screaming and yelling, tried to calm the situation and suggested that respondent discuss his concerns about hiring with the mayor, he responded by referring to the mayor in profane, vulgar terms and added that he was contemplating holding her in contempt.

The commission noted that the behavior at issue was not an isolated instance.

The proposed removal now goes to the state Court of Appeals. (Mike Frisch) 

April 6, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, April 5, 2016

I'll Be Seeing You

The Tennessee Court of Judicial Conduct entered an agreed order of dismissal of allegations against a judicial commissioner.

The agreed statement acknowledges that the commissioner had certified that a person had appeared before him for bond when no court record reflected the appearance and the defendant had denied it.

The commissioner agreed to take steps assure accuracy in the future. The commissioner had implemented the procedures after the incident at issue. (Mike Frisch)

April 5, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, March 29, 2016

Sign Language

An opinion from the South Carolina Advisory Committee on Standards of Judicial Conduct deals with the propriety of a judge's involvement in a spouse's political campaign

A full-time Municipal Court Judge wishes to be involved in a spouse’s political campaign for a non-partisan position at a local level. No monetary campaign contributions will be sought. The judge wants to attend meet-and-greet events and post campaign signs. The judge would not personally seek permission from the landowners to place signs, but once someone from the campaign has obtained permission, the judge would participate in the posting of the signs. Some of the people or businesses who consent to allowing the signs may have appeared (or could appear in the future) before the judge.

The judge may attend functions and but not post signs

Here, the judge will not be personally seeking permission from the landowners or businesses to post the signs, which reduces the inference of public endorsement. However, the fact that the judge will be posting the signs for the spouse’s campaign could still create the inference of a public endorsement to onlookers. In addition, the judge’s actions could also create the appearance that the judge is lending the prestige of judicial office to advance the spouse’s private interests as a political candidate. Thus, we conclude that the judge should not participate in the posting of a spouse’s campaign signs.

(Mike Frisch)

March 29, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Monday, March 28, 2016

Ready For My Close Up, Mr. DeMille

A new opinion from the Florida Judicial Ethics Advisory Committee


May a judge appear in a documentary concerning a case that the judge prosecuted as an assistant state attorney and that has reached final disposition where the judge will not be identified as a current, sitting judge?

ANSWER: Yes, as long as the matter on which the inquiring judge has been asked to speak has reached final disposition in both the state and federal appellate process.


The inquiring judge has been contacted by a television producer about participating and possibly appearing in a documentary concerning a murder case which the judge prosecuted as an assistant state attorney in 2005. The Defendant was convicted and sentenced to thirty-five years in prison. The judge advises that the most recent appellate activity concluded in 2014, and that there are currently no pending appeals. The judge also advises that the judge will be identified in the documentary only as the prosecutor in the case, and will not be referred to as a current, sitting judge. Additionally, the judge will not appear in the documentary wearing a judicial robe or in judicial chambers, but rather, in both a casual setting and clothing.

OK but

We caution, however, that Florida Code of Judicial Conduct, Canon 2(B) states that “[a] judge shall not lend the prestige of judicial office to advance the private interests of the judge or others.” For this reason, the inquiring judge would not be permitted to appear in the documentary, in order to discuss the judge’s prior role in the case as the prosecutor, were the judge to be identified as a current, sitting judge, because that appearance would lend the prestige of the judicial office to the private interests of the documentary producers, and their particular point of view, if any, presented in the documentary. See Fla. JEAC Op. 07-07. As such, the fact that the inquiring judge will not be identified as a current, sitting judge, nor appear in the documentary wearing a judicial robe or in the setting of judicial chambers, is also relevant to this Committee’s opinion that the judge’s appearance would not be prohibited under the Code.

(Mike Frisch)

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

Thursday, March 24, 2016

From Bar To Barred

A Village Court Justice has resigned from the bench and barred from future office based on a stipulation entered into with the New York State Commission on Judicial Conduct.

Judge House was apprised by the Commission in March 2016 that it was investigating a complaint that, in or about August 2015, after consuming alcoholic drinks at a local bar, he engaged in public conduct both inside and outside the bar with another patron that was inconsistent with his ethical obligations to act at all times in a manner that promotes public confidence in the integrity of the judiciary and to conduct his extrajudicial activities so as not to detract from the dignity of his judicial office.

His February 23 resignation letter ends "God bless all of you." (Mike Frisch)

March 24, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, March 16, 2016

Peace Bond Misconduct Leads To Removal

A judicial officer has been removed from office by the Louisiana Supreme Court.

There were complaints in two matters that led to proceedings before the Judiciary Commission

The Commission found that respondent repeatedly abused and exceeded his judicial authority, used his office to advance his own personal interests, demonstrated bias and prejudice, exhibited incompetence and gross negligence in the oversight of his office, and exhibited inappropriate judicial temperament and demeanor. In the LeBlanc/Vignes matter, he imposed unlawful jail sentences on two individuals for failing to post peace custody case in another parish, repeatedly extended the terms of peace bonds beyond the maximum term allowed by law and without conducting hearings, and failed to timely refund peace bond monies after peace bonds expired without a forfeiture, including losing track of $2,000 of peace bond money for over two years in his attorney trust account. In the Henderson matter, respondent demonstrated improper judicial temperament and demeanor, failed to properly supervise his staff, and notarized affidavits in support of peace bond applications when the affiants did not appear before him, swear out an oath, or sign the affidavit in his presence. Finally, in both matters, respondent demonstrated a practice of charging fees for peace bonds that were in excess of those authorized by law and of double-charging fees, i.e., charging both the peace bond plaintiff and defendant the same fees for the same services, in order to enrich himself. The Commission further found that respondent is an experienced attorney who knew or should have known better. For this misconduct, the Commission recommended that respondent be removed from office and be assessed with costs. The Commission also recommended that the right to bring lawyer discipline proceedings against respondent be reserved.

Removal is the appropriate sanction

we adopt the Commission’s rationale, and conclude the most severe sanction of removal from office is warranted in this case to protect the integrity of the judiciary and the public from future harm. Respondent’s misconduct as set forth above is so prejudicial to the administration of justice in his justice of the peace court that he cannot be allowed to remain on the bench. In our view, any discipline less than removal would undermine the judicial discipline process and diminish the integrity of the judiciary.

(Mike Frisch)

March 16, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, March 15, 2016

Called Out On Strikes

The West Virginia Supreme Court of Appeals granted a petition for mandamus against a person running for a magistrate position.

The Court concludes that Troy Sexton has been convicted of a misdemeanor involving moral turpitude and therefore, pursuant to West Virginia Code § 50-1-4, he is ineligible to serve as a Magistrate for Putnam County. In light of Mr. Sexton’s ineligibility to serve as a Magistrate for Putnam County, his name shall be removed from the May 2016 election ballot.

Recognizing the significance of election issues to the State of West Virginia and its citizens and given the parties’ request for accelerated consideration and resolution of this matter as it relates to the preparation of ballots in the upcoming primary election, the Court issues its decision through this order with an opinion to follow in due course. reported on the petition

The petition says state law requires that magistrates not be convicted of "any felony or any misdemeanor involving moral turpitude."
The [Judicial Investigation Commission]  filing says Sexton pleaded guilty to making harassing phone calls to a woman in 2010, and falsely reporting an emergency incident and driving under the influence in 2014.
He pleaded no contest to misdemeanor domestic battery charges in 2009.
Sexton says regardless of his past misdemeanors, he's still qualified to run for magistrate.

I cannot confirm but he may also be a fan of the Los Angeles Dodgers as reported by the New York Daily News

A man with a history of abusive behavior was arrested in Cincinnati Tuesday night for violating a lifetime ban and showing up at Great American Ball Park, where the Reds faced the Los Angeles Dodgers.

Troy Sexton, who's come to be known to Dodger followers as "Troy from West Virginia," was charged with criminal trespass and obstructing official business. He also faces a felony burglary count, though it was not clear what prompted that charge.

He is being held in the Hamilton County Jail on a $40,000 bond, the Cincinnati Enquirer reported.

Sexton, 40, of Hurricane, W. Va., was banned from the stadium on the Ohio River in 2008, after his participation in a brawl raised such a ruckus the game was delayed.

He pleaded guilty to disorderly conduct in that incident. A charge of resisting arrest was dropped.

(Mike Frisch)

March 15, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, March 9, 2016

Voucher Censured

The New Mexico Supreme Court recently issued a public censure to a district court judge who

admits that on or about June 19, 8 2014, [he] initiated ex parte communications with Grant County Magistrate  Judge Maurine Laney – concerning a case that was pending before Judge Laney – in an attempt to personally vouch for the character of the defendant and obtain special treatment for the defendant...

 The judge agreed to submit to a formal mentorship and unsupervised probation.

In an unrelated matter, the court publicly censured another judge for improper ex parte communication in a civil matter. (Mike Frisch)

March 9, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

From Outstanding To Out Standing

A district court judge who admitted misconduct was suspended from practice for 90 days by the Minnesota Supreme Court.

[W]hile serving as a district court judge, [he engaged in misconduct by] failing to maintain residency in the judicial district in which he served; making a knowingly false statement in an affidavit of candidacy; and making misleading statements about his removal as a district court judge in a blog.

Minnesota Lawyer has a story on the sanction.

On a better day he received an award as an outstanding judge. (Mike Frisch)

March 9, 2016 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, March 8, 2016

No PTSD Mitigation For Magistrate's Misconduct

The opinion of the Ohio Supreme Court in the case of the Akron Magistrate is now posted and summarized on the court's web page

Williams Had Sexual Relationship With Party in Case
Williams was appointed judge in the Akron Municipal Court in March 2009 and lost a bid to retain the seat in the November 2009 general election. The municipal court judges then hired him as a magistrate, and part of his duties was to oversee eviction cases.

While presiding over a case where a landlord sought to evict a woman identified in court documents as A.B., Williams began a sexual relationship with A.B. and failed to recuse himself from the case. Weeks later, municipal court judges learned A.B. had been arrested for operating a motor vehicle while intoxicated and was referring to Williams as her boyfriend. Williams admitted the relationship to the judges, recused himself from A.B.’s case, and resigned.

After leaving the court, Williams worked at a Columbus law firm, but was terminated in May 2013. Days after losing his job, he and A.B. purchased a used car by listing an address where he had not lived for more than a year and falsely stating a salary with the law firm he just left. With Williams’ consent, A.B altered one of his paystubs to get the car loan, and Williams later defaulted on the loan.

Williams also represented a woman seeking to be appointed to manage the financial affairs of an estate in Summit County Probate Court. The probate court approved a $25,000 wrongful-death settlement to the estate, and the money was deposited in Williams’ client trust account. Williams made several payments on behalf of the estate but failed to comply with a court order to pay about $10,800 for an annuity to benefit the dead man’s three children.

In April 2011, the probate court ordered Williams to close the estate assuming the annuity had been purchased, but Williams informed the court he kept the money in his client trust account and was going to invest in a money-market account to benefit the children. More than a year later, the money had not been transferred, and Williams had taken nearly all the funds from it. In May 2013, he transferred $10,000 of personal funds back into the account. He then depleted the account again and secured personal funds to replenish it. However, while the account still had $10,800, financial experts estimated the children lost about $9,000 by not having the annuity.

The Office of Disciplinary Counsel filed complaints with the professional conduct board that included violation of the Code of Judicial Conduct for Williams’ failure to disqualify himself in cases where his impartiality could be questioned, and for violations of the rules governing attorneys including engaging in conduct involving dishonesty, fraud, deceit or misrepresentation; not acting with reasonable diligence when representing a client; and engaging in conduct prejudicial to the administration of justice.

Williams told the board he had no intention of continuing to serve as the magistrate in A.B.’s eviction case but did not know how to recuse himself. He also said A.B. began abusing him and that he was diagnosed with post-traumatic stress disorder (PTSD) caused by their relationship. He entered into a five-year contract with OLAP.

The Court found Williams failed to establish that PTSD played a role in the causing his misconduct as an attorney, but acknowledged “he practiced law without incident for more than 20 years before he commenced his improper relationship with A.B.” The Court found a two-year suspension with 18 months stayed was appropriate as long as Williams complies with his OLAP contract, continues counseling for PTSD, does not engage in further misconduct, and makes full restitution to the children from the mishandled estate.

In the Court’s majority were Chief Justice O’Connor and Justices Pfeifer, Kennedy, French, and O’Neill.

Justices O’Donnell and Lanzinger dissented, writing that they would impose a two-year suspension without a stay.

2015-0293. Disciplinary Counsel v. Williams, Slip Opinion No. 2016-Ohio-827.

The oral argument is linked here. (Mike Frisch)

March 8, 2016 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, March 3, 2016

The Man From Stanford (Sort Of)

The Oregon Supreme Court has affirmed the dismissal of proceedings against a judge.

The facts, taken from the record, are as follows.

In 2010, before he became a judge, respondent attended a week-long “trial academy” presented by the International Association of Defense Counsel (IADC), held on the campus of Stanford Law School. Although held on the Stanford campus, the academy was not affiliated with that school. Upon completion, respondent received a certificate stating that he “successfully completed the course of instruction at the IADC Trial Academy, Stanford Law School[.]”

In 2013, respondent filed for election to an open judicial position on the Deschutes County Circuit Court. Aspart of his initial form submission to the Secretary of State, under “Education Information,” “Educational Background (schools attended),” respondent listed his college and law school degrees, and under a related section, “Educational Background (other),” respondent identified his participation in the academy as follows: “International Association of Defense Counsel: Trial Academy Graduate, at Stanford Law School.” (Emphasis added.

 After respondent completed his Secretary of State submission, he prepared a voters’ pamphlet statement, limited to a 325-word narrative. To prepare that narrative, he  reviewed the Elections Division’s Candidates Manual for compliance, and he also consulted with colleagues. Respondent decided to include a reference to the academy in a section that contained his college and law school information, which he entitled “Educational Background.” In doing so, he did not include the word “at” before “Stanford Law School,” as he had in his earlier Secretary of State submission; instead, he replaced “at” with a comma. He initially used “IADC” to describe the academy—specifically writing “IADC Trial Academy, Stanford Law School”—but he eliminated that modifier after a judge who reviewed the draft statement suggested that it was not recognizable. Respondent opted not to spell out “IADC” so that he could save four words to use elsewhere in his statement. He asked a different judge to review an updated draft that removed “IADC,” and that judge told him that nothing about “Trial Academy, Stanford Law School,” appeared misleading to him. Respondent’s
final voters’ pamphlet statement therefore stated, “Trial Academy, Stanford Law School,” as part of his educational background.

The assertions became a campaign issue and, after he was elected, an alleged ethical violation.

The court

As to the allegation under Rule 5.1(D) (false statement relating to judicial campaign), the commission determined— as respondent argued below—that respondent’s voters’ pamphlet statement had not been “false” within the meaning of that rule. After reviewing the record, even if respondent’s statement qualified as a “false statement” for purposes of Rule 5.1(D) (which we do not decide), we are not persuaded by clear and convincing evidence that respondent acted with the requisite mental state.


(Mike Frisch)

March 3, 2016 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Sunday, February 28, 2016

Judicial Ethics Opinions From South Carolina

An opinion of the South Carolina Advisory Committee on Standards of Judicial Conduct.

A Family Court judge is not required to disqualify himself or herself from a proceeding involving their secretary’s attorney. However, the judge should disclose any relevant information regarding any possible disqualification on the record...

Here, none of the judge's relatives will appear as an attorney in a proceeding. See Advisory Opinion 10-2012. The secretary’s attorney is not "the judge’s spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person" as prohibited by Canon 3E. Id. Therefore, the judge is not disqualified from presiding over matters where his or her secretary’s attorney appears. However, under the commentary of Canon 3E, “[a] judge should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification.” Id. In addition, the judge’s secretary should not be involved in any matter in which the attorney representing her appears.

This opinion permits a magistrate judge to serve as executor of the estate of a close friend

A magistrate court judge has an elderly family friend who has appointed the judge as Executor of her will and as her agent under a Health Care Power of Attorney . The judge has known the friend for forty years. The friend is a widow with no children, and the judge has been like a child to her. The friend is considered to be a grandmother to the judge’s own child and is included in all family functions. The judge inquires as to whether serving as Executor of the friend’s will and as the friend’s agent under a Health Care Power of Attorney would violate the Code of Judicial Conduct.

And this opinion blesses service on a foundation board so long as no fund raising is involved.

A retired Circuit Court judge, who still holds court, has been asked to serve on the Board of Directors a charitable foundation that was created in honor of a former client of the judge’s. The foundation is committed to youth development programs to promote Christian values, education, and life-skills development. The foundation’s goal is to build a boys and girls’ center to help at-risk children in the community...

A retired Circuit Court judge may serve on the Board of Directors for a charitable foundation, provided that the judge does not engage in fund-raising and that the judge’s title is not used in any materials published by the foundation.

(Mike Frisch)

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

Thursday, February 25, 2016

"Your Favorite Judge"

The Ohio Supreme Court has permanently disbarred a judge convicted of mail fraud.

The report of the Board of Commissioners on Grievances and Discipline had this snippet of the evidence of a conversation with a litigant

Frank Russo: Hello.

Respondent: Frank, your favorite Judge.

Frank Russo: Hey, Stevie, how are you?

Respondent: I'm doing well, how are you?

Frank Russo: I'm doing really, really, really good ...

Respondent: ... Hey Renee called and said you wanted me to call you?

Frank Russo: Yeah, I just wanted to let you know. Did Robin give you those case numbers?

Respondent: Yes.

Frank Russo: OK. In other words, I talked to you about this once before, it's about denying the motions for summary judgment.

Respondent: Yep. I still have the note that you gave me.

Frank Russo: OK. Good. Deny the motions for summary judgment. Good.

Respondent: Got it.

 Frank Russo: Ok, good. No that was all, I just wanted to touch base with
you on that, and that's it ...

 He was convicted of, among other things, accepting gifts from Russo.

The Board

the Board voted to modify the sanction recommended by the hearing panel and recommends that Respondent, Steven James Terry, be permanently disbarred from the practice of law in Ohio.

The court agreed. had the story of the criminal trial. (Mike Frisch)


February 25, 2016 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (2)

Saturday, February 20, 2016

Kentucky Speaks On Judicial Campaigning

The Kentucky Supreme Court answered three certified questions  from a federal district court concerning ethical restrictions on campaigns for judicial office

These canons were promulgated by this Court with the objective of complying with Section 117 of our Constitution requiring that "Justices of the Supreme Court and judges of the Court of Appeals, Circuit and District Court shall be elected from their respective districts or circuits on a nonpartisan basis as provided by law." (Emphasis added.) We interpret this provision of the Kentucky Constitution as directing that Kentucky's judicial elections be nonpartisan in truth and substance, and not merely in process and procedure by the superficial omission of a political party designation on the voting ballot. Accordingly, we provide the following certification of Kentucky law in response to the District Court's questions.

The facts

Robert A. Winter, Jr., filed to run in the May 2014 primary election as a candidate for circuit court judge in the 16th Judicial Circuit (Campbell County). As part of his campaign strategy, Winter mailed brochures to registered Republican voters identifying himself as a registered Republican and, conversely, identifying his opponents as registered Democrats. After the brochures were sent out, the Kentucky Judicial Conduct Commission (JCC) notified Winter that it had received complaints that his brochures violated the Kentucky Code of Judicial Conduct. Winter responded in June 2014 by filing suit in the District Court against the JCC challenging the constitutionality of Canons 5A(1)(a) (prohibiting judges and judicial candidates from campaigning as a member of a political organization) and 5B(1)(c) (prohibiting judges or judicial candidates from making "false" or "misleading" statements). During the same election cycle,

Cameron Blau entered the race as a candidate for district court judge in the 17th Judicial District (Campbell County). Because Blau likewise intended to openly campaign as a Republican and send brochures likewise identifying himself as a Republican, in October 2014, Blau filed an intervening complaint to join Winter's challenge to Canons 5A(1)(a) and 5B(1)(c). As relevant here, Blau also challenged the constitutionality of Canon 5A(1)(b) (a judicial candidate shall not "act as a leader or hold any office in a political organization"). In his complaint, Blau stated that he wanted to send out brochures to potential voters identifying himself as "the only Republican candidate for Judge," or "the Conservative Republican candidate for Judge" and identifying his opponent as "the Democrat candidate" or the "Liberal Democrat for Judge." Blau also indicated in his complaint that he wanted to seek the endorsement of the local Republican Party, host events for the local Republican Party, and make political donations to members of the Republican Party.' In a lengthy order preliminarily addressing the constitutionality of the canons under review (the Injunction Order), the District Court concluded that there was a likelihood that each of the canons at issue was unconstitutional, and granted Blau's motion to prevent the JCC from enforcing the canons against him in the November 2014 election.

The third question dealt with the question whether an appointed judge could indicate that she was seeking "re-election."

Key holdings

there is a vast difference between the permissible speech of a judicial candidate identifying herself as a member of a political party and the impermissibly deceptive conduct of representing herself as the nominee of a political party. The former statement would be true; the latter is by any standard, blatantly false. Canon 5A(1)(a) draws that distinction...There is no "Republican candidate" for that office; the assertion is materially false and misleading. See Canon 5B(1)(c) (prohibiting materially false statements). Political parties and factions do not select or nominate candidates for judicial office in Kentucky. Canon 5A(1)(a) merely recognizes and faithfully codifies this Constitutional reality...

Under the current state of affairs of modern American politics, the Republican Party is commonly regarded as occupying the conservative side of the political spectrum, and so the addition of the modifier "Conservative" is surplusage, doing nothing to dispel the implied falsehood that the candidate is running for Kentucky judicial office as the formal candidate of the Republican Party...

The statement by a candidate that his opponent is "the Democrat candidate for Judge" is an impermissible message to the voters. His opponent is not, in fact, the Democrat candidate for Judge. As previously explained, such candidates do not exist in Kentucky, and such a campaign message would therefore amount to a blatant falsehood. See Canon 5B(1)(c) (prohibiting materially false statements).

Question Two is answered thus

Consistent with the definition of "acting as a leader," as just discussed, one who hosts an event for a political party is "acting as a leader" for the party. Merriam-Webster defines "host" as: "1 a: one that receives or entertains guests socially, commercially, or officially; b: one that provides facilities for an event or function . . . ." 1 ° Therefore, someone who provides the facilities for an event of a political party or officially receives the political party attendees is, indeed, acting as a "leader" of a political party. The "host" of an event, political or otherwise, uses the prestige of his or her name to promote the event and exerts a significant measure of control and authority over the event, more so, in our view, than the more passive political delegate function in Blauvelt. Perforce, a judicial candidate hosting a political event acts as a leader of that event and is, in turn, acting as a leader of the political party on whose behalf the political event is being held. Under Canon 5A(1)(b) that is prohibited conduct.

Question Three dealt with "knowing falsehoods" in judicial elections

A false statement is a statement that is not factually true in the normal sense; that is, an untrue utterance. For example, it would include such statements as: "I graduated first in my class" when the candidate did not; "I have won all of my cases as an attorney" when the candidate had not; "I was an officer in the military" when the candidate was not; or "my opponent was convicted of a drug offense" when the opponent was not. 

The provision does not, however, cover expressions of opinion because expressions of an opinion do not implicate a statement that is not factually true. For example such statements as "Justice Stevens was the best Justice ever"; "Citizens United was the best decision ever"; or "my opponent is too liberal" are all expressions of opinion and not subject to Canon 5B(1)(c). 

In summary, Canon 5B(1)(c) extends only to statements made during a campaign which are objectively factually untrue and do not extend to expressions of subjective opinions or innocuous campaign-trail "puffing" ("I am the most qualified candidate in the state.")...

...when an incumbent judge uses the word "re-elect" as campaign stratagem to persuade the public that she acquired the office by the • popular vote of the people rather than as the appointee of a governor, its use is calculated to mislead and deceive the voters. Accordingly, we distinguish these informal, idiomatic usages and regard these journalistic references as irrelevant to our review.

The common understanding of the term "re-elected"means that the candidate has been elected once before rather than appointed. 

Unanswered: What if the word "retained" was used?

Judge Noble concurred and dissented.

Coverage of the opinion here by the Associated Press from the Lexington Herald Leader, which described Justice Noble's views

Justice Mary C. Noble dissented with part of the decision. She said she saw no distinction between a judicial candidate describing himself as the only Republican candidate and as a conservative. Neither should be permitted, she said in a separate opinion. Justice Samuel T. Wright III joined her.

"Our Constitution requires that judicial candidates be non-partisan candidates, and declaring oneself to be any kind of Republican (or Democratic) candidate adds partisanship to the actual candidacy, rather than stating in which political party one has membership," Noble wrote.

(Mike Frisch)

February 20, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, February 11, 2016

Child Of The Judge

A new opinion from the Florida Judicial Ethics Advisory Committee


Whether potential ethical violations are raised for a judge when a law firm publicly acknowledges, promotes, or markets the fact that an attorney with the law firm is the child of a specifically named judge.

ANSWER: Yes. The judge must adamantly and genuinely encourage the law firm not to publicly acknowledge, promote, or market the attorney’s relationship with the judge.


...publicly announcing and marketing the relationship between the Inquiring Judge and child lends the prestige of judicial office to advance the private interests of the law firm to which the Inquiring Judge’s child is a member. The public may be inclined to use this particular law firm because of the specific advertisement of this familial relationship between the judge and attorney child. Furthermore, it gives the public the impression that because the Inquiring Judge’s child is an attorney in the firm, that law firm has a special relationship with the Inquiring Judge or the Inquiring Judge’s colleagues. Utilizing the judge’s office in this fashion runs afoul of Canon 2B. See also Fla. JEAC Ops. 13-23 (judge ethically prohibited from posing for church photograph for “God and Country Day” to be published in newspaper if the photograph is to be utilized in the solicitation of members or donations); 10-35 (sitting judge may not permit mediation firm that judge will be joining to send out announcement that sitting judge will be joining the firm upon retirement); 03-03 (judge’s participation in a law firm's litigation program by presiding over mock trials at a law firm’s training retreat gives other firms and public the perception that judge has a special relationship with that particular law firm).

The JEAC recognizes that the law firm may reject the Judge’s request not to promote or advertise the Judge’s parent-child relationship with the attorney in the law firm. As we have instructed other judges in other JEAC opinions in which a third party is involved, the Inquiring Judge is advised to adamantly and genuinely encourage the law firm not to promote this relationship. See Fla. JEAC Ops. 12-06 (judicial candidate must encourage spouse not to campaign at a political party function wearing the judicial candidate’s campaign badge); 11-10 (judge instructed not to permit judge’s home to be used for a campaign gathering on behalf of a political candidate who is not a member of the household and judge must adamantly and genuinely encourage the spouse to host the event elsewhere). The Inquiring Judge is not ethically responsible for the actions of the law firm or any third party once the Inquiring Judge has apprised the third party not to take this action.

(Mike Frisch)

February 11, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, February 10, 2016

Little League Thefts Lead To Removal Of Town Court Justice

The resignation of a town court justice has been accepted by the New York Commission on Judicial Conduct.

From the stipulation

On December 15, 2015, Judge Powers pled guilty to a reduced charge of fourth degree grand larceny, also a felony, admitting that between October 2007 and July 2014, she stole an amount exceeding $1,000 from bank accounts belonging to the Russell Pee Wee Association at the North Country Savings Bank, where she was employed. reported the resignation of the justice, who is not an attorney. (Mike Frisch)


February 10, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Friday, January 29, 2016

McCree Suspended

A former judge has been suspended for two years in Michigan

Respondent appeared at the hearings and filed an answer to the formal complaint. The hearing panel found that respondent had committed professional misconduct during his tenure as a Wayne County Circuit Judge, when he engaged in an extra-marital affair with a litigant in a child-support case assigned to his courtroom; communicated with the litigant and presided over various aspects ofthe case during the course of his affair; and failed to recuse himself for several months. The panel also determined that respondent presided over a case involving a relative of the litigant with whom he was having the affair, and that he conferred with her before issuing a bond reduction in the matter. The panel further determined that respondent made false and misleading statements and representations to the Wayne County Prosecutor and the Judicial Tenure Commission relating to his actions in those two cases.

The hearing panel found that respondent's conduct was prejudicial to the proper administration of justice, in violation of MCR 9.104(1); exposed the legal profession or the courts to obloquy, contempt, censure, or reproach, in violation of MCR 9.104(2); was contrary to justice, ethics, honesty, or good morals, in violation of MCR 9.104(3); violated the standards or rules of professional conduct adopted by the Supreme Court, in violation of MCR 9.104(4); and, knowingly misrepresented any facts or circumstances surrounding a request for investigation or complaint, in violation of MCR 9.104(5). The panel further found that respondent violated or attempted to violate the Rules of Professional Conduct, knowingly assisted or induced another to do so, or do so through the acts of another, in violation of MRPC 8.4(a); engaged in conduct involving dishonesty, fraud, deceit, misrepresentation, or violation of the criminal law, where such conduct reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer, in violation of MRPC 8.4(b); and, engaged in conduct that is prejudicial to the administration of justice, in violation of MRPC 8.4(c).

Abovethelaw had this (illustrated) story on the misconduct. 

I am saddened in part for the impact this situation has on the memory of his father - former federal circuit court  judge and United States Solicitor General Wade McCree.

One of the great thrills of my life was arguing a case in the Supreme Court against General McCree in 1977. One of the great gentlemen I ever encountered in my life. I still have and cherish the note he wrote me after the argument. (Mike Frisch)

January 29, 2016 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, January 26, 2016

Removal Proposed For Judge Who Hung Hitler Portrait In "Hall Of Heroes"

The Oregonian has a report concerning the conduct of a state court judge

A state commission recommended Monday that Marion County Circuit Judge Vance Day be ousted from his job for his refusal to marry same-sex couples and other ethical violations.

The Oregon Commission on Judicial Fitness and Disability made its rare recommendationto the Oregon Supreme Court in a 48-page report. The high court ultimately will decide whether to remove Day from the bench.

The nine-member commission -- which held a two-week hearing in November into Day's conduct -- concluded that he has undermined public trust in the judiciary and that he should no longer be allowed to work as a judge.

"Judge Day shows no outward sign of comprehending the extent or nature of his ethical violations," the commission wrote. "His misconduct is of such a nature as to impugn his honesty and integrity."

Day released a statement through a spokesman, saying he and his legal team are "disappointed" with the commission's findings.

"A quick review of the decision indicates that the Commission's 'finding of facts' are at odds with evidence presented at the hearing, and some have no evidentiary support at all," the statement read. "The opinion is especially troubling because it disregards Judge Day's First Amendment rights to freedom of religion, speech and association. He will vigorously defend these rights, and his innocence of the remaining charges, before the Oregon Supreme Court."

Among the commission's findings:

Day instructed his staff members to embark on a "discriminatory plan" by telling people that they would have to check the judge's schedule before he could perform a wedding, the commission said. The judge then told his staff to investigate if the couples were gay.

If so, staff members were to tell the couple that the judge was "unavailable" on the requested day and to call another judge, the commission said.

"Judge Day is a Christian whose firmly held religious beliefs include defining marriage as only between a man and a woman," the commission said in its decision.

The commission noted that those beliefs clash with U.S. District Judge Michael McShane's ruling in May 2014 overturning Oregon's ban on same-sex marriage.

Marion County Circuit Judge Cheryl Pellegrini told the commission that when she was appointed to the bench in 2014, Day invited her out to breakfast and told her he was opposed to her appointment because of her sexual orientation as a lesbian. Day, however, said he told Pellegrini that he was opposed because she had been a government lawyer. The commission found Pellegrini's account "to be more credible."

Beyond the issue of marriage or sexual orientation, the commission found that Day committed many other ethical missteps, including some "amounting to criminal behavior."

The commission said that Day intentionally deceived media and the public by saying he was being unfairly attacked by the commission because of his religious beliefs when in reality the commission had been investigating him for other concerns before discovering his refusal to marry same-sex couples.

"His misconduct is not isolated," the commission wrote. "It is frequent and extensive. ...(P)ossibly the most disturbing, Judge Day has engaged in a pattern of dishonesty. Although the goal of much of his disingenuousness appears to be covering up misconduct, some of this conduct seems to have other independent objectives."

The commission found that Day has little insight into "the boundaries required" for being a judge.

For example, the commission wrote that Day included a portrait of Adolf Hitler in a "Hall of Heroes" artwork display he erected in the Marion County Courthouse. When Presiding Judge Jamese Rhoades told him to take it down, he told her, "You don't want to go there because some very influential people in this town want it up," the commission wrote. Rhoades viewed that as "a veiled political threat," the commission said.

The commission found that Day did ultimately take down the portrait, but was reimbursed twice for the $879 that he spent matting it.

Among other problems with boundaries, the commission said that the judge hired defendants he was overseeing on probation to help with home projects for himself and his family.

The commission also said that Day "relentlessly" texted and sent personal photos to a felon who was on probation, even though the felon was trying to avoid a personal relationship with Day. The felon was a Navy Seal, and the commission wrote that Day compelled the man to introduce Day to the his Navy Seal friends and that Day even brought one "noted Navy Seal" to a wedding to "show him off."

What's more, the commission found that after Day's son was hurt during a Chemeketa Community College soccer game in 2012, Day shoved "his judicial business card at a soccer referee" to intimidate the referee because Day was mad at him for a call he'd made before his son's injury.

Day also allowed a felon to handle a gun -- despite knowing that was illegal -- so the man could help Day's son prepare for his entry into the military, the commission said.

Day is in his mid-50s, married and a father of three. He has been a licensed attorney in Oregon since 1991. He was appointed to be a Marion County Circuit judge in 2011 and elected in 2012.

Read the commission's report here.

-- Aimee Green

(Mike Frisch)

January 26, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, January 21, 2016

Too Late To Disqualify?

A post from sunEthics

Judge presided over a criminal case in which the defendant was a City of Sweetwater police officer charged with official misconduct.  The State filed a motion to disqualify Judge, citing these grounds:  “(1) the trial judge’s acknowledged previous attorney-client relationship with the City of Sweetwater Police Department, which appeared as a third party duces tecum witness before the trial judge on a show cause order why it should not be held in contempt for its failure to comply with a subpoena duces tecum for production of documents; (2) the trial judge’s acknowledged personal and extra-judicial knowledge regarding facts asserted during that discovery dispute; and (3) the trial judge’s  acknowledged previous attorney-client relationship with the defendant, who he represented in another case.”

          Judge denied the motion as untimely.  The State petitioned the Third DCA for a writ of prohibition.  The appellate court denied the petition.  “While these allegations give rise to an objectively reasonable fear of bias or prejudice requiring disqualification of the trial judge, we are compelled to deny the petition for writ of prohibition because the motion to disqualify the trial judge was not timely filed.”  The court went on to indicate that Judge should step aside voluntarily:  “Although we have denied the petition, we note that rule 2.330(i) permits a judge to enter an order of disqualification on his own initiative.”   State v. Oliu, __ So.3d __ (Fla. 3d DCA, No. 3D15-2426, 1/6/2016), 2016 WL 63662. 

(Mike Frisch)

January 21, 2016 in Judicial Ethics and the Courts | Permalink | Comments (1)