Wednesday, February 22, 2017

"99%...Pure Bullshit"

In a matter involving allegations of misconduct against a sitting judge, the Maryland Court of Appeals directed that the Commission on Judicial Disabilities file the record of proceedings leading to a reprimand for the court's limited review

The Commission has the power to reprimand a judge, which it had exercised in the matter.

The court

In this case, we must decide – initially – whether there is any mechanism for this Court to review the fundamental fairness of a proceeding conducted by the Commission on Judicial Disabilities (“Commission”) when the Commission disciplines a judge in the sole manner in which the Constitution authorizes it to do without referring the matter to this Court. We hold that there is such a mechanism – the common law writ of mandamus. Our review in this particular case awaits the provision by the Commission of the record of its proceedings.

The judicial complaint involved a judge-lawyer interaction in a civil case that had led to the judge's recusal.

The judge stated

[B]ecause I am incredulous, because I am in disbelief, because I find myself incapable of believing virtually anything that Mr. Jones has just told me, I’m in the unfamiliar territory of finding that I must recuse myself from any further proceedings in this case because I cannot believe anything that the Reverend Rickey Nelson Jones Esquire – I’m reading off the letterhead – tells me. I think that 99% of what Mr. Jones has told me about his conduct on behalf of his client is pure bullshit[.] So I’m forced to recuse myself and I can’t get past the idea that I cannot believe a darn thing that Mr. Jones tells me now. So I am compelled under … Rule 2.11 [of the Maryland Code of Judicial Conduct] to disqualify myself in any further proceedings in this case, because I now believe based on Mr. Jones’ conduct and representations in this case, in his discussion and exploration of who struck John in recent days about his request for accommodation, all without following the precise instructions and procedures in the Scheduling Order and the website and resources available to him, I find that I cannot be impartial. I am personally biased or prejudiced concerning Mr. Jones and his conduct. So, I’m going to recuse myself.

The court

Notwithstanding her decision to recuse herself from the trial of the Joyner case, Judge White stated that she would preside over the October 31, 2014, hearing regarding the show cause order she had issued because, as she stated, it was her “responsibility to address it.”

Then

Mr. Jones filed multiple complaints concerning Judge White with the Commission beginning on October 20, 2014. Following an investigation, and with the authorization of the Commission, Investigative Counsel filed charges dated March 31, 2016 against Judge White. Investigative Counsel alleged that Judge White had violated various provisions of the Maryland Code of Judicial Conduct. All of the charges concerned Judge White’s conduct during the three hearings in the Joyner case during 2014.

A hearing was held by the Commission and a reprimand imposed.

The judge sought review

The immediate question before us is whether there is any mechanism for us to review Commission proceedings when the Commission determines that a reprimand is the appropriate discipline – a form of discipline that the Constitution authorizes the Commission to impose on its own without referring the matter to us. We hold that there is no constitutional or statutory basis for this Court to exercise appellate jurisdiction to review the Commission’s proceedings. We do have original jurisdiction, however, to conduct a limited review, pursuant to a common law writ of mandamus, of Judge White’s claims that the Commission abused its discretion and deprived her of the procedural due process guaranteed by the State Constitution and Maryland Rules. In order to conduct that review, we direct the Commission to file the record of its proceedings with us. To the extent that Judge White asks for review of matters that preceded the filing of charges, she must submit a written waiver of confidentiality to the Commission.

The court held that an accused judge is entitled to due process but

Our review under a writ of mandamus, however, is limited. The Constitution and our rules provide for the Commission to issue a reprimand without approval or review by this Court. The Commission’s decision to issue a public reprimand is properly classified as a non-ministerial discretionary act that is dependent upon the judgment of the Commission members. Once the Commission has provided an accused judge with the requisite due process, it is entrusted to the Commission’s discretion whether to dismiss the charges, reprimand the judge, or recommend other discipline to us. Thus, a writ of mandamus is not available to review a claim that the Commission erred in concluding that a judge committed sanctionable conduct or in its judgment to reprimand the judge as a result of that conclusion...

In order to carry out the review of Commission proceedings for which we have jurisdiction, we direct the Commission to file the record of the proceedings concerning its charges against Judge White, including that part of its record relating to the pre-charging period for which Judge White waives confidentiality. Once the record has been filed with the Court, the parties shall submit additional briefs and an appropriate record extract, according to a schedule set forth by future order of the Court. Such briefing shall be limited to the question of whether the Commission proceedings failed to comply with the Constitution and Maryland Rules and, if so, whether any such failure affected the fundamental fairness of the proceeding.

The charges filed against the judge are linked here.

The oral argument before the Court of Appeals is linked here.

The judge's alma mater Washington & Lee noted that she was named Maryland Judge of the Year in 2014. (Mike Frisch)

February 22, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, February 21, 2017

Senior Judge Reprimanded For OWI

The Indiana Supreme Court has reprimanded a senior judge

In lieu of Respondent tendering a written response to the charges, the parties jointly tendered a “Statement of Circumstances and Conditional Agreement for Discipline” in which the parties have stipulated to the following facts. On the night of Saturday, October 1, 2016, a Porter County Sheriff’s Department deputy responded to 911 calls from two different individuals about a southbound vehicle periodically veering into northbound traffic on Indiana State Road 149 in Porter County. The deputy observed a vehicle matching the description provided by one of the 911 callers driving slowly on State Road 149 in the area of C.R. 550 North. After stopping Respondent’s vehicle and approaching Respondent, the deputy noticed an odor of alcohol on Respondent’s breath and person. Respondent’s speech was slurred, his eyes were watery, his manual dexterity was poor, and his balance was unsteady. He failed at least three field sobriety tests, and when he consented to a preliminary breath test, the result was .20 BAC. He then voluntarily gave a blood sample at Valparaiso Medical Center in Lake County. 

He pled guilty to charges of operating while intoxicated

Respondent and the Commission agree that by being arrested and convicted for Operating a Motor Vehicle While Intoxicated, Respondent violated Code of Judicial Conduct Rule 1.1 requiring judges to comply with the law, and Rule 1.2 requiring judges to avoid impropriety and to act at all times in a manner that promotes public confidence in the integrity of the judiciary.

The parties cite no facts in aggravation. In mitigation, they agree that Respondent immediately self-reported his misconduct and voluntarily contacted the Judges and Lawyers Assistance Program (JLAP); that he is compliant with all JLAP requests; that he has been fully cooperative with the Commission throughout its investigation; and that he is remorseful for his conduct. They also agree that under the circumstances, the appropriate sanction is a public reprimand. The Court agrees with the parties.

(Mike Frisch)

February 21, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Friday, February 17, 2017

Montana Need Not Pay Court Reporter Harassed By Judge

The State of Montana was not liable based on a stipulated judgment between a judge and his harassed court reporter, according to a decision of the Montana Supreme Court.

The facts found by the District Court for purposes of this declaratory action are as follows. In 1991, Berdahl began working as a court reporter for the Sixteenth Judicial District Court, in Forsyth. In November 2012, George Huss was elected as a district court judge in the Sixteenth Judicial District. Huss oversaw Department Two of the District and Berdahl worked directly for Huss as his primary court reporter. In this capacity, Berdahl worked closely with Huss and often traveled with him to locations within the District for official court business.

In February 2014, Berdahl filed a sexual harassment complaint against Huss with the Montana Human Rights Bureau (HRB). Berdahl alleged that Huss, during work time, had made various declarations of romantic interest, love, and undying devotion to her, which Berdahl resisted. Berdahl stated that Huss bought her gifts, offered to make her dinner while his wife was out of town, and expressed his desire to kiss and hug her. Berdahl alleged that Huss retaliated against her in the workplace when she resisted his overtures. Berdahl’s detailed complaint set forth numerous further allegations about Huss’s behavior, some of which was delineated by the District Court.

The judge sought defense and indemnification by the State to no avail and

Berdahl and Huss mediated on September 3, 2014, and although they did not reach a settlement that day, they continued to negotiate and, on September 30, 2014, entered into a “Stipulation and Confession of Judgment Resulting from the State of Montana’s Refusal to Defend and Indemnify.” In this agreement, Huss confessed to judgment in Berdahl’s favor in the amount of $744,371. He assigned his rights against the State to Berdahl and agreed to “cooperate in jointly requesting entry of this Judgment by any tribunal having jurisdiction.” Berdahl agreed not to seek execution of the judgment against Huss.

Berdahl then sought payment from the State

We affirm the District Court’s determination that the State was not obligated to pay the stipulated judgment entered by Berdahl and Huss. Consequently, it is unnecessary to address the issue of whether Huss’s actions came within the course and scope of his employment. Finally, as the District Court correctly noted, Berdahl may pursue relief before the HRB, where the administrative proceeding on her complaint is currently stayed.

(Mike Frisch)

February 17, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Friday, February 10, 2017

"Beer With Obama" Judge Suspended In West Virginia

The West Virginia Supreme Court of Appeals (reconstituted due to multiple recusals) has suspended a recently-elected judge for his false campaign flyer

Judge-Elect Callaghan approved a direct-mail flyer created by Mr. Heflin emblazoned with “photoshopped”  photographs of President Obama and Judge Johnson, along with the caption “Barack Obama & Gary Johnson Party at the White House . . . .” President Obama is depicted holding what appears to be an alcoholic beverage and party streamers form the background of the photographs...

Distilled to its essence, the ultimate question presented to this Court is whether the flyer is “false” and therefore stripped of First Amendment protection, or, as Judge-Elect Callaghan insists, merely the juxtaposition of two attenuated occurrences— coal job losses in Nicholas County and Judge Johnson’s attendance at a federal seminar in Washington, which was “hyperbolized” as “partying” at the White House. We conclude that the “gist” of the subject flyer conveys that Judge Johnson “partied with Obama” at his personal invitation and is therefore simply too far afield from the truth to be considered protected, hyperbolic free speech; it is, in every sense, materially false. Judge Johnson attended a federally-required meeting and conference in furtherance of his service to the State, which meeting and conference was utterly devoid of any meaningful connection to or interaction with the President. Judge Johnson’s attendance at the meeting and conference is exaggerated, repurposed and mischaracterized to the point that it is rendered patently untrue. When viewed in its entirety as instructed by various courts, we have little difficulty finding that the subject flyer contains knowingly, materially false statements in violation of the Code of Judicial Conduct and the Rules of Professional Conduct.

We therefore conclude that the First Amendment does not serve to shield Judge-Elect Callaghan from discipline as a result of the subject flyer. We further conclude, as did the Board, that the subject flyer contains a knowingly false statement and that Judge-Elect Callaghan’s actions in approving and disseminating the flyer are therefore violative of Rule 4.1(A)(9), Rule 4.2(A)(1), Rule 4.2(A)(4) of the Code of Judicial Conduct and Rule 8.2(a) of the West Virginia Rules of Professional Conduct.

Majority on sanction

With regard to his attempts at corrective measures and his level of regret, however, we find that although he removed the false assertions from his personal and campaign Facebook pages and ran radio advertisements ostensibly retracting the assertions contained in the flyer, the calculated and intentional timing of his mailings rendered it virtually impossible to engage in meaningful mitigation. As Judge Johnson testified, time constraints prevented him from taking meaningful action in response to the distribution of the flyer.  Nicholas County’s only newspaper was a weekly paper, and the timing of the mailing prevented inclusion of any response or countermeasure in that paper.  Thus, we find that the removal of the assertions from social media and the radio statements are entitled to limited weight in mitigation...

Judge-Elect Callaghan’s subsequent statements during his testimony continued to reveal a dismissive and cavalier attitude toward his behavior. He stated, “If I had to do it again, I probably would not approve the flier going out just because it’s not enjoyable - politics is not enjoyable in a lot of different ways, but when you cause outrage in somebody, that, I regret.” Moreover, his written response to the initial complaint disingenuously urges that “[s]ome members of the public may have been duly impressed by the fact that Judge Johnson was honored by the White House for the good works he had performed[.]” He further suggested that Judge Johnson could have “easily . . . boycotted this meeting, based upon his disagreement with President Obama’s policies, and he could have publicized such a boycott for political purposes.” In his testimony before the Board, Judge-Elect Callaghan minimized his conduct...

There is an opinion concurring in part by Judge Matish

The majority considers the recommendation of the Judicial Hearing Board of two concurrent one-year periods of suspension without pay to be too lenient, instead ordering two consecutive one-year suspensions without pay be imposed, plus a $15,000 fine, costs, and a public reprimand. While I concur with the majority’s reasoning as to the seriousness of this matter, I respectfully disagree as to the length of the suspension. The entire circumstance merits additional charges and punishment because, after reviewing the record presented and hearing oral argument, it is my opinion that the punishment is still not severe enough, because of the numerous violations that occurred with the so-called Obama flyer alone.

...the majority could have just as easily found violations for each untruthful statement of the so-called “Obama flyer,” which included: (1) the photoshopped pictures of President Obama and Judge Gary Johnson with the beer, since there was no party attended with President Obama where alcohol was served; (2) that Judge Johnson was not invited by the President; (3) that President Obama was not even present;( 4 ) that Judge Johnson did not go to the White House; and (5) none of this had anything to do with Judge Johnson defending jobs in Nicholas County. Each of these violations, having occurred in the so-called “Obama flyer” that was mailed to the voters and having been placed upon two separate Facebook posts, would amount to a multiplier of, at a minimum, three separate postings or publications, for a minimum of fifteen violations, in and of itself, justifying as much as a fifteen-year suspension. 

...As a country, we have gone far astray from what is right and what is good. We have become the most connected nation with our cell phones, smart phones, tablets, computers, and social media, while simultaneously becoming the most disconnected nation because of our cell phones, smart phones, tablets, computers, and social media. In trying to one up the next guy at his expense, we fail to realize that we harm ourselves in the process. Once you hit “Send,” it is out there forever, and you cannot take it back.

As a judge or judicial candidate, you are expected to have a standard to live up to, not only in your personal life and how you conduct yourself on the bench, but how you run a campaign to secure the trust of the public in voting to elect you. It is disturbing to me that Judge-elect Callaghan admitted to reading the Code of Judicial Conduct when he decided to run. However, the Code of Judicial Conduct was later changed and adopted December 1, 2015, yet Judge-elect Callaghan, in his testimony, never admitted to stating specifically that he read the new Code of Judicial Conduct nor talked about any Code of Judicial Conduct to the media company he hired. Also, the media company admitted to not having talked with Judge-elect Callaghan about it either. 

The falsity used by Judge-elect Callaghan in his campaign perpetrated a fraud upon the voters of Nicholas County, the 28th Judicial Circuit. By his own actions, he has shown that he is unfit to hold a judicial office, and, at the appropriate time, a new election should be held.

Judge-elect Callaghan may very well have won the election fair and square based upon other factors in Nicholas County, or the fact he pointed to in one of his other flyers that after a certain amount of time, things need changed, but instead he resorted to certain falsities, which definitely are not to be tolerated in a judicial election. We may now live in a world of “fake news” and “alternate facts,” but if we cannot trust, honor, and respect our Judges and Justices, who can we trust?

Since Judge-elect Callaghan was first an attorney running for a judicial office, I would give him a one-year suspension as an attorney, followed by a year for each violation of the Code of Judicial Conduct, for a total suspension of four years. However, the possibility exists under the facts of this case that the suspension could be for much longer, as stated above. Therefore, I respectfully dissent as to the length of punishment, and would order Judge-elect Callaghan to serve four one-year consecutive periods of suspension from the bench, without pay, in addition to the fines and costs imposed by the majority. 

MetroNews - the voice of West Virginia - has the story and the flyer. (Mike Frisch)

February 10, 2017 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Monday, February 6, 2017

Recusal Denied

A claim of an improper ex parte Christmas party encounter did not establish sufficient bias for recusal in heated litigation, according to a decision of the Tennessee Court of Appeals. 

The allegation surfaced in this billing notation

11/21/14   At Schell & Davies law firm party in Franklin with Trevor. Meet Judges Woodruff and Binkley and others. Meet Virginia Story and discuss case.  1.50

From the judge's affidavit

I recall being at a Christmas party at Schell & Davies law firm in Franklin, Tennessee, at the end of the month in November 2014. I barely remember saying “hello” to Mr. Harris, Judge Woodruff, and Mrs. Story, attorney for [Mr. Nesmith], but I would not, certainly, under any circumstances, discuss with any attorney or party to a lawsuit, the facts of a case or even bring up the case itself for any reason whatsoever. I never had an ex parte communication with Mrs. Story or Mr. Harris regarding any case, much less the present case, at the Christmas party mentioned above on or about November 21, 2014.

The court

Other than the vague notation that counsel for a party in the circuit court action “met” Judge Binkley at a holiday party, there is simply no indication that any of the merits of the case were discussed or that the interaction was anything more than passing social contact. “The mere existence of a friendship between a judge and an attorney is not sufficient, standing alone, to mandate recusal.”

Nor did delay or a heating courtroom exchange establish bias for recusal

We cannot deny that we are troubled by the events in this case, including the trial court's repeated delay in disposing of motions and its clear violation of section 1.02 of Rule 10B. Moreover, we are particularly concerned with Mr. Nesmith's action in filing affidavits from court staff in support of his characterization of the May 20, 2016 hearing. Again, however, the court staff‟s characterizations of the events of May 20, 2016 appear to stem directly “from events occur[r]ing in the course of the litigation,” rather than any extrajudicial knowledge. Accordingly, we reiterate that for any bias on the part of the trial judge and his staff to necessitate recusal, it must be so pervasive as to deny Appellants the right to a fair trial. 

We have thoroughly reviewed the record in this case and conclude that Appellants have failed to meet their burden to show a bias so pervasive that it denies them their right to a fair trial. The record on appeal contains no indication that Judge Binkley has prejudged any of the issues in this case in favor of one party, despite the contentiousness of the proceedings among all participants. We agree that Judge Binkley did enter into a heated exchange with Appellants and their children at the May 20, 2016 hearing and was overly candid in his remarks regarding the presence of the children; however, Appellants have failed to show that this exchange, viewed in isolation, or in conjunction with the trial judge‟s multiple adverse rulings and delays, is evidence of a bias “so pervasive that it is sufficient to deny [Appellants] a fair trial,” see id., or that shows that Judge Binkley has an “utter incapacity to be fair.” Groves, 2016 WL 5181687, at *5. Accordingly, Judge Binkley did not err in denying Appellants' recusal motions.

(Mike Frisch)

February 6, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, January 24, 2017

The Art Of Judging

 A new judicial ethics opinion from South Carolina reaches an unsurprising result:

                                         ADVISORY COMMITTEE ON STANDARDS OF JUDICIAL CONDUCT

                                                                                OPINION NO. 2 - 2017

RE: Propriety of the Magistrate’s Court placing artwork for sale in the courthouse and also posting advertisements for local restaurants or other vendors.

                                                                                          FACTS

A magistrate judge inquires as to the propriety of placing artwork for sale in the courthouse and also posting advertisements for local restaurants or other vendors. The court utilizes electronic court boards for legal notices and it has been proposed that these electronic boards also include the advertisements.

                                                                                     CONCLUSION

The Magistrate’s Court should not place artwork for sale in the courthouse or post advertisements for local restaurants or other vendors.

                                                                                       DISCUSSION

Canon 2B states that a judge “shall not lend the prestige of judicial office to advance the private interest of the judge or others[.]” By placing artwork for sale in the courthouse, the magistrate would appear to be advancing the private interests of the artists whose works are displayed. Likewise, if advertisements for local restaurants and other businesses were displayed in the Magistrate’s Court or on the magistrate electronic boards for legal notices, the magistrate’s court could appear to be advancing the private interests of those businesses.  Thus, the magistrate cannot place artwork for sale in the courthouse or also post advertisements for local restaurants or other vendors without violating the Code of Judicial Conduct.

(Mike Frisch)

January 24, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Monday, January 23, 2017

Here Comes the Sun

A deferred disciplinary agreement has been entered into between an investigative panel of the Tennessee Board of Judicial Conduct and a General Sessions Court  judge.

The agreement places the judge on probation for three years.

The judge had been the subject of criminal charges that were dismissed, as reported by the Knoxville News Sentinel

A senior judge threw out all charges Wednesday against a Campbell County judge accused of official misconduct.

"Judge Sammons, this case is dismissed. You are free to go," Senior Judge Paul Summers told Campbell County General Sessions Court Judge Amanda Sammons.

Sammons has been on trial this week on two counts of official misconduct. She was accused of changing without authority a charge against a LaFollette mother and setting a $250,000 bond without any legal basis in an incident in January. Sammons contends she mistook the case for another more serious offense but denied she actually ordered the charge changed.

Summers ruled that after a day of testimony the state had failed to present enough proof of the crime of official misconduct for the jury to even consider the case.

The agreement entered into here notes that the judge is now "more reflective and less hasty and impatient in her judicial decisionmaking." 

Attached to the agreement is a letter from the judge in which she notes the dramatic impact of her own experience as a criminal defendant on her approach to judging as it was a "life changing" experience.

As it has played out since many of these complaints were filed, although ours is a very small town with only a handful of licensed attorneys. a large number of them in recent months and years have not only been disbarred but have gone to federal prison, have been brought up on charges of severe embezzlement, and have faced serious discipline and suspension.

The "proven fact" set forth above had led the judge to assume judicial office as the "remedy."

But there is light ahead

you will see that hostility has been eviscerated. Generations of coldness have melted away and a new day is springing forth out of the ground.

The agreement resolves a number of complaints.

For example, the judge had set a $250,000 bond in a case where what she thought involved aggravated child abuse turned out to be a failure to restrain a child with a seat belt. The defendant was held for two days until the matter was straightened out. (Mike Frisch)

January 23, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Calling Broderick Crawford

The South Carolina Advisory Committee on Judicial Conduct has opined that a magistrate judge is not disqualified under these circumstances

A magistrate judge is married to a state highway patrol officer who works in the same county as the magistrate’s court. The highway patrol officer is not a supervisor. The magistrate would not hear any cases in which the magistrate's spouse is the case agent or a witness. However, the judge inquires as to whether there is any impropriety with hearing cases involving other members of the highway patrol.

Reasoning

the Committee is of the opinion that the judge may continue to preside over tickets/matters involving the state highway patrol even though the judge is married to a member of the state highway patrol. Of course, the judge may not preside in any matter in which the judge’s spouse is a witness or the case agent.

However, if a party seeks disqualification of the judge based on the judge’s spousal relationship with a member of the highway patrol, the judge must consider whether presiding over the case individually involving the highway patrol would create the appearance of impropriety. If the recusals or requests for disqualification create an administrative burden such that the judge is unable to properly perform judicial duties, then the judge should no longer remain on the bench.

(Mike Frisch)

January 23, 2017 in Judicial Ethics and the Courts | Permalink | Comments (1)

Friday, January 13, 2017

Town Court Justice Admonished For Facebook Post

A non-attorney town court justice has been admonished for misconduct by the New York Commission on Judicial Conduct

from March 13, 2016 to March 28, 2016, with respect to People v David VanArnam, a matter then pending in the Canton Town Court, St. Lawrence County, respondent made public comments on her Facebook account about the pending proceeding and failed to delete public comments about the pending proceeding made by a Morristown Town Court clerk...

In March 2016, respondent maintained a Facebook account under the name "Lisa Brown Whitmarsh." Respondent had approximately 352 Facebook "friends." Respondent's Facebook account privacy settings were set to "Public," meaning that any internet user, with or without a Facebook account, could view content posted on her Facebook page.

On March 13, 2016, respondent posted a comment to her publicly viewable Facebook account, as shown on Exhibit A to the Agreed Statement of Facts, criticizing the investigation and prosecution of Mr. VanArnam. Respondent commented, inter alia, that she felt "disgust for a select few," that Mr. VanArnam had been charged with a felony rather than a misdemeanor because of a "personal vendetta," that the investigation was the product of "CORRUPTION" caused by "personal friends calling inpersonal favors," and that Mr. VanArnam had "[a]bsolutely" no criminal intent.

Several friends "liked" the post.

clicking the "like" button is a way for Facebook users to indicate that they "enjoy" a post.

But someone else did not enjoy it.

On March 23, 2016, a local news outlet posted an article on its website reporting on respondent's Facebook comments concerning the VanArnam case and re-printed respondent's Facebook post of March 13, 2016, in its entirety.

On March 28, 2016, respondent removed all postings concerning the VanArnam matter from her Facebook page after receiving a letter from District Attorney Rain questioning the propriety of her comments and requesting her recusal from all matters involving the District Attorney's office.

She agreed to recusal and to refrain from further posts on judicial matters.

The commission

Comments posted on Facebook are clearly public, regardless of whether they are intended to  be viewable by anyone with an internet connection or by a more limited audience of the user's Face book "friends." Even such a "limited" audience, we note, can be substantial, and to the extent that such postings can be captured or shared by others who have the ability to see them, they cannot be viewed as private in any meaningful sense. Accordingly, a judge who uses Facebook or any other online social network "should ... recognize the public nature of anything he/she places on a social network page and tailor any postings accordingly" (Adv Op 08-176)...

The Advisory Committee on Judicial Ethics has cautioned judges about the public nature and potential perils of social networks and has advised that judges who use such forums must exercise "an appropriate level of prudence, discretion and decorum" so as to ensure that their conduct is consistent with their ethical responsibilities (Adv Op 08- 176). Further, since the technology behind social media can change rapidly and unpredictably, it is essential that judges who use such forums "stay abreast of new features of and changes to any social networks they use" since such developments may impact the judge's duties under the Rules (Id).

These are excellent guidelines for any judge who joins and uses an online social network. At a minimum, judges who do so must exercise caution and common sense in order to avoid ethical missteps.

The agreed statement of facts is linked here. (Mike Frisch)

January 13, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, January 11, 2017

Judge Suspended For Misconduct

The Missouri Supreme Court has suspended a judge for six months without pay for misconduct relating to her dealings with the public defender

Having reviewed the evidence before the Commission, it is clear that Respondent intentionally delayed the appointment of public defenders to subvert the rights of indigent defendants. She did this, ostensibly, because of a disagreement over whether the public defender’s office could enter an appearance for an indigent defendant in probation violation cases.

Interfering with the administration of justice, as in this case, undermines the “public confidence in the independence, integrity, and impartiality of the judiciary,” to say nothing of the lack of promptness, efficiency or fairness to a defendant’s right to be heard. What is more, the impact of Respondent’s misconduct operated to prejudice indigent defendants who were confined and awaiting appointment of counsel. Their right to be heard according to law was delayed. Finally, Respondent’s threats of filing disciplinary complaints against counsel, and ultimately filing a disciplinary complaint in retaliation for a judicial complaint filed by the director of the public defender’s office, violates the Code of Judicial Conduct and constitutes misconduct. Even if it was not in retaliation, as Respondent claimed, it was inconsistent with the propriety with which a judge should act.

Judge Wilson concurred

I write to emphasize the fact that Respondent was correct (in part) in her reading of this statute does nothing to excuse or mitigate the seriousness of her misconduct. Judges are neutral arbiters of the disputes that come before them. Here, time after time, Respondent let her view of the Public Defender’s authority – which authority was invoked by the defendant and never questioned by the state – outweigh her judicial obligation to maintain both the fact and the appearance of objectivity and impartiality in adjudicating the cases before her. And Respondent’s misconduct did not stop there. In the course of her dispute with the Public Defender, Respondent purposely and repeatedly sacrificed the rights of some defendants in probation violation cases to the statutory interpretation point she felt compelled to make to the Public Defender generally. Time and again, defendants who would have been entitled to representation by the Public Defender were denied that representation for some period because Respondent refused to make a timely determination of whether, under the circumstances, counsel was necessary to protect each defendant’s due process rights.

It is difficult to imagine a reasonable justification for not taking up and deciding this question during a defendant’s first appearance before the court, particularly if the defendant is incarcerated. Of course, an isolated failure to do so would not raise a question of judicial misconduct for the Commission and this Court, but would simply be a matter for ordinary review – and, if error, correction – by a higher court. Respondent’s conduct, however, was no isolated incident.

(Mike Frisch)

January 11, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, January 10, 2017

Craven County

The North Carolina Supreme Court publicly reprimanded a judge who had failed to disclose outside income and engaged in misconduct in a matter where he initiated criminal charges against a tenant to whom he had rented

On 3 May 2013, Respondent sought criminal charges against the former tenant and a criminal summons was issued for injury to real property. On the criminal summons, Respondent is listed as the complainant and his address is listed as 300 Broad St., New Bern, NC 28560, the address of the Craven County Courthouse.

The former tenant’s criminal charge, Craven County File No. 13CR51808, was first set for 30 May 2013. The criminal case was continued a number of times and remained pending for over a year for various reasons. The former tenant had difficulty finding a defense attorney to represent him when Respondent was the prosecuting witness. Eventually, the former tenant applied for a court-appointed attorney and an Assistant Public Defender from outside Respondent’s judicial district was assigned by the Office of Indigent Defense Services.

In an effort to bring all the parties together to settle the criminal matter, the Assistant District Attorney (ADA) assigned to prosecute the former tenant’s charge calendared the matter in Respondent’s courtroom. Respondent did not set the case on his own calendar or exercise undue judicial authority to have the former tenant’s charge heard in his court.

On 25 April 2014, Respondent presided over Criminal District Court in Craven County, and Craven County File No. 13CR51808 appeared on line number 28 of that court calendar, with Respondent’s name listed as the complainant.

During the 25 April 2014 court session, Respondent provided the ADA with photographs of the damaged rental property, which were also shared with the Assistant Public Defender, who then consulted with the former tenant. The parties reached an agreement that Respondent and the ADA would not pursue the criminal charge against the former tenant if he paid Respondent restitution for the property damages. This is a common means of resolution in similar criminal cases in Craven County. All parties agreed on the amount of restitution and the case was continued to allow the former tenant time to raise the necessary funds to pay Respondent.

On 18 July 2014, the ADA again scheduled Craven County File No. 13CR51808 on Respondent’s docket, and the case appeared on line number 18 of the court calendar, with Respondent’s name listed as the complainant. During this court session, Respondent recessed court and was joined in an office behind the courtroom by the ADA and the former tenant. The Assistant Public Defender representing the former tenant was not present as per an agreement with the ADA. During this meeting, Respondent left the office temporarily, and when he returned, the ADA had received $3000 in cash as restitution from the former tenant, and the ADA handed it to Respondent. After restitution was made to Respondent, the ADA filled out a form dismissing the criminal charge against the former tenant. There is no dispute that Respondent was entitled to the restitution from the former tenant.

The court

As the presiding judge in criminal district court on 25 April 2014 and 18 July 2014, it was incumbent upon Respondent to independently evaluate the propriety of his personal criminal matter being calendared before him as presiding judge, and further, to recognize the obvious conflict of interest and the potential for public concern as to his influence over the outcome of a matter in which he had a personal financial interest. As a criminal complainant, it was also incumbent upon Respondent to maintain a clear separation of his personal life from his judicial duties, including ensuring that his personal address rather than the Craven County Courthouse address was indicated as his address on the criminal summons, and settling and accepting cash restitution at a time when he was not also exercising his judicial duties as presiding judge.

The court cited the judge's disclosure compliance, many positive attributes and noted that he got the message on the intersection between his role as landlord and judge

Respondent has already shown initiative to comply with the Code by recusing himself when the former tenant obtained a new unrelated criminal charge which was scheduled before Respondent. When Respondent realized the matter was on his calendar, he properly recused himself.

(Mike Frisch)

January 10, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Friday, January 6, 2017

One Reprimand Is Enough

A judge who was reprimanded for improper conduct as a judge is not subject to bar discipline for the same conduct, according to a recent opinion of the North Carolina Supreme Court

The State Bar asserts that a judge is still a lawyer after taking office and therefore, must comply with both the Code of Judicial Conduct and the Rules of Professional Conduct as required by section 84-28.6 Therefore, the State Bar contends that the DHC may discipline a sitting judge because “[j]udicial discipline concerns the fitness of a judge to serve as a judge. Attorney discipline concerns the fitness of a lawyer to be a lawyer. The same conduct may implicate both fitness to be a judge and fitness to be a lawyer.” We agree that a judge’s conduct may affect his or her fitness to be a lawyer. In Badgett III the DHC disbarred the defendant once he was removed from judicial office; however, while a judge remains in office, only this Court or the JSC may impose discipline for his or her conduct as a judge.

In the present case defendant was a member of the General Court of Justice when he engaged in the misconduct set forth above. As a result, he was investigated and disciplined by the JSC pursuant to sections 7A-376 and 7A-377. Having accepted the JSC’s public reprimand, defendant remains a sitting member of the General Court of Justice. Based upon the history and language of Article 30 of Chapter 7A of the General Statutes, we conclude that jurisdiction to discipline sitting judges for their conduct while in office rests solely with the JSC and this Court, and not with the DHC.7 Consequently, we hold that the DHC does not have jurisdiction to discipline defendant as a sitting member of the General Court of Justice for his conduct while a member of the General Court of Justice. Accordingly, we reverse the DHC’s denial of defendant’s motion to dismiss the State Bar’s complaint against him and remand this case to the DHC with instructions to dismiss with prejudice the State Bar’s complaint.

The case involved dealings with the Kill Devil Hills police. 

Chief Justice Martin wrote a lengthy concurring opinion. Justice Ervin wrote and concurred in the result. 

Hat tip to the ABA Journal. (Mike Frisch)

January 6, 2017 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Monday, January 2, 2017

Suspension Proposed For Judge Who Sexually Harassed Employee: Drafted Recommendation Letter That Said She Was "Sexy As Hell"

The Michigan Judicial Tenure Commission has proposed a censure and suspension of 60 days without pay of a probate judge who had sexually harassed his judicial secretary over a three-year period from 2012 to 2015. 

The misconduct consisted of, among other things, a series of text messages where he complained about the state of his marriage and unaccepted invites to a Rihanna/Eminem concert and to travel to "exotic locations for court-related conferences" where they would share accomodations. 

He showed her a "sexually suggestive Youtube video of a high-priced lingerie website Agent Provocateur."

He also drafted a letter of recommendation on her behalf that advised potential employers that she was "sexy as hell." 

That language was deleted at the secretary's request. 

The judge self-reported the misconduct to the commission after reaching a civil settlement with the secretary.

Matt Durr at MichiganLive reported the story

Between 2012 and 2015, Iddings sent after-hours text messages to the woman about his marital problems and personal feelings, invited the woman to accompany him to court-related conferences where they would share a hotel room and shared a video with her about a lingerie website.

...the secretary filed a complaint against Iddings and in June a settlement was agreed upon and the secretary received an undisclosed amount of money. At that time Iddings then self-reported himself the judiciary committee for review.

The commission also recommends that the judge take a course in Texas called Maintaining Proper Boundaries.

Details from Lenconnect's David Panian.

The Peninsula had the story in October 2016 of the judge's reappointment by Governor Snyder to the Commission on Community Action and Economic Opportunity

The CCAEO is a 12-member commission created to reduce the causes, conditions and effects of statewide poverty in Michigan. The CCAEO also promotes social and economic opportunities in Michigan, and seeks to enable self-sufficiency for lower-income residents in the state.

“I thank Judge Iddings for his continued service on this commission and I am confident he will provide thoughtful input to assist low-income Michiganders,” Snyder said.

(Mike Frisch)

January 2, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, December 28, 2016

Out On Strikes

A new opinion from the Florida Judicial Ethics Advisory Committee

Opinion Number: 2016-22
Date of Issue: December 12, 2016

ISSUE

Whether a senior judge may work part time for an insurance adjusting company as an insurance umpire in any circuit in which the senior judge may preside.

ANSWER: No.

FACTS

The inquiring judge will be taking senior judge status in January of 2017, and is considering part time employment with an insurance adjusting company as an “insurance umpire.”  The inquiring judge states that the office the judge would work for is located in one county, but performs work in many other counties, and specifically asks whether it is permissible to work as an insurance umpire in any county in which the inquiring judge serves as a senior judge.

DISCUSSION

Senior judges subject to recall must comply with all provisions of the Code of Judicial Conduct, with limited exceptions. See Fla. Code Jud. Conduct, Application (stating that a senior judge “shall comply with all the provisions of this Code except Sections 5C(2), 5E, 5F(1), and 6A”); Fla. JEAC Op. 06-02. To that end, Florida Code of Judicial Conduct, Canon 5G provides that “[a] judge shall not practice law,” and Canon 5D(3) states that a judge “shall not serve as an officer, director, manager, general partner, advisor or employee of any business entity.”  Indeed, the restrictions contained in Canon 5D(3) are “one of the few per se proscriptions on lawful off-the-bench activities to be found in the Code.”  Fla. JEAC Op. 97-35. See also Fla. JEAC Op. 16-12.

Subject to clear restrictions and disclosure requirements, the Code does permit senior judges to engage in certain dual service roles, such as mediator, arbitrator, or voluntary trial resolution judge. Although the Florida Statutes do not contain a definition for “insurance umpire,” an umpire is sometimes judicially appointed and other times appointed by appraisers pursuant to the terms of an insurance policy during the appraisal process of a property insurance dispute. Unless the role of insurance umpire is sufficiently equivalent to that of a certified mediator, arbitrator, or voluntary trial resolution judge, employment would be prohibited by the Code and the inquiring judge may not engage in part time employment as an insurance umpire.

As noted, the Code permits senior judges to engage in certain dual services, in the role of mediator, arbitrator, and voluntary trial resolution judge, outside of any circuit in which the senior judge serves as a senior judge. See Fla. Code Jud. Conduct, Canon 5F(2); Fla. JEAC Op. 15-15. Even if the role of insurance umpire was substantially similar to those permitted dual service roles, the inquiring senior judge would be subject to the same restrictions and disclosure requirements set forth in the Code. Among other restrictions, senior judges providing a dual service, such as mediation, through an entity may only be associated with entities that are solely engaged in offering mediation or other alternative dispute resolution services. Fla. Code Jud. Conduct, Canon 5F(2). Here, the inquiring judge anticipates providing the insurance umpire services while affiliated with a company that describes itself as an all-line insurance adjusting service company that offers services such as claims adjusting, appraisals, scene investigations, umpire services, and mediation. Because that entity is not solely engaged in offering alternative dispute resolution services, the senior judge may not be affiliated with that company while providing any dual services if also serving as a senior judge.

Regardless of entity affiliation, a senior judge is prohibited from providing any dual services within any circuit in which the senior judge serves as a senior judge. In Opinion 16-18, we concluded that a senior judge serving as a court appointed, litigant-paid special master would be subject to the same geographical restriction. “A senior judge shall disclose if the judge is being utilized or has been utilized as a mediator, arbitrator, or voluntary trial resolution judge by any party, attorney, or law firm involved in the case pending before the senior judge.”  Fla. Code Jud. Conduct, Canon 5F(2). The senior judge must also disclose if there have been any negotiations or agreements between the judge and any of those same parties or attorneys for any such dual services. Furthermore, absent express consent from all parties, for a period of three years, a senior judge cannot preside over any case involving any attorney, party, or law firm that is utilizing or has utilized the judge as a mediator, arbitrator or voluntary trial resolution judge. Id.

For the reasons set forth above, we conclude that the inquiring judge must not serve as a senior judge and as an insurance umpire affiliated with an entity as described above. Nor does the information provided to us here indicate that serving as an insurance umpire is necessarily the equivalent of serving as a mediator, arbitrator, voluntary trial resolution judge, or litigant-paid special master; therefore, we find that it would not be permitted under the guidelines set forth in Canon 5F(2) for permissible several dual service roles.

(Mike Frisch)

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

Thursday, December 22, 2016

Florida Judges May Attend Inauguration

An opinion from the Florida Judicial Ethics Advisory Committee

ISSUES

1. May a judge attend the 2017 Presidential Inauguration?

ANSWER: Yes, as long as no funds are paid to a partisan political organization.

2. May a judge attend the Florida Inaugural Ball being hosted by the Florida State Society?

ANSWER: Yes, as long as no funds are paid to a partisan political organization and attendance is not limited to members of one partisan political party.

The Committee believes that mere attendance at any particular presidential inauguration does not violate Canon 7. Attendance at a presidential inauguration does not amount to a public endorsement or an implicit statement of support for a candidate for public office or a particular political party. Nor does it constitute attendance at a political party function. Rather, a presidential inauguration is open to members of all political persuasions; it is a national celebration for the entire country. See Fla.JEAC Op. 12-03 n.3. Indeed, it is implicit in the intended peaceful transition of power in this country that citizens of all political persuasions accept the election of the prevailing candidate. Celebration of the election of any presidential candidate should not therefore be deemed to be inappropriate political activity, even after a campaign season marked by robust and divisive partisan political activity.

In making arrangements for and attending the inauguration, however, the judge should be careful not to otherwise violate Canon 7 or any other provision of the Code. For example, the judge may not make payments to a political organization in order to obtain premium seating at the inauguration. Simply put, the judge must at all times avoid inappropriate political activity or the appearance of impropriety, and shall uphold the integrity and independence of the judiciary. Fla. Code. Jud. Conduct, Canons 1, 2, and 7.

With respect to attendance at the Florida Inaugural Ball, the same prohibitions apply. The judge states that the Florida Inaugural Ball is being hosted by the Florida State Society. The Committee has no reason to believe that the Florida State Society is a partisan political organization or that the Florida Inaugural Ball is a political party function. Ultimately however, it is the responsibility of the judge to make reasonable and sufficient inquiry to assure that any payment being made, either by the judge or on the judge’s behalf, to attend the Florida Inaugural Ball involves no funds being paid to a partisan political organization, and that attendance at the Ball is not limited to members of one partisan political party.

(Mike Frisch)

December 22, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, December 21, 2016

Hot Stove League

The Herald-Tribune (Elizabeth Johnson) reports

Formal complaints are being filed against a former circuit judge and an attorney in Manatee County after The Florida Bar found probable cause of misconduct. The cases will be filed with the state's Supreme Court for additional review and disciplinary proceedings.

John Lakin retired from the bench in March after self-reporting that he had accepted baseball tickets from attorneys appearing in his courtroom. He'd served as a judge for three years and considered that "the highlight of my 26-year legal career," Lakin stated in his retirement letter to Gov. Rick Scott.

 Lakin accepted Tampa Bay Rays tickets from several attorneys, including Melton Little, of the Kallins, Little, Delgado firm in Palmetto.

A day after requesting and getting tickets from Little's firm, Lakin overturned a jury's verdict that had ruled in favor of Walmart and against Little's client in a slip-and-fall case. Lakin later accepted more tickets while Walmart appealed his order for a new trial.

Lakin told Chief Judge Charles Williams in October 2015 that he had accepted the gift. Williams advised Lakin to report that information to the Judicial Qualifications Commission, which launched an ethics probe.

The JQC stopped pursuing the case when Lakin stepped down from office, but said it would revisit the issue if he attempted to return to the bench.

Lakin's attorney, Jack Weiss, previously attributed Lakin's actions to "a serious lapse of judgment."

The Florida Bar continued its review.

A grievance committee found that probable cause of misconduct by Lakin and Little, including violating rules of professional conduct and engaging in actions prejudicial to the administration of justice. In addition, probable cause was found that Little disrupted impartiality and decorum of court proceedings.

 The grievance committee met in September, but letters of notice were sent Tuesday to attorneys representing Lakin and Little.

A letter of advice was sent to Gregory Hagopian, an attorney who also gave Lakin baseball tickets. While the grievance committee stated it does not condone Hagopian's actions, it acknowledged that Hagopian gave Lakin the tickets because of their friendship and not to influence his courtroom decisions. Hagopian completed ethics training and was advised by the grievance committee to avoid acts that may appear to show impropriety.

The Florida Bar previously dismissed a complaint filed against Bradenton attorney Ed Sobel, also relating to baseball tickets. Sobel provided documentation showing that Lakin paid fair market value for the tickets and a parking pass.

Discipline by the Florida Supreme Court can range from a reprimand to revocation of the license needed to practice law in the state.

(Mike Frisch)

December 21, 2016 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Eddie From Ohio

A stayed suspension of one year was imposed on a Massillon judge by the Ohio Supreme Court.

It was not his first rodeo

In October 2012, we found that he violated the Code of Judicial Conduct and the Rules of Professional Conduct for, among other things, unnecessarily injecting himself into an internal police-department investigation, using vulgar and intemperate language toward a probationer in his courtroom, and conducting that individual’s probation review without the presence of his counsel or the prosecutor. Disciplinary Counsel v. Elum, 133 Ohio St.3d 500, 2012-Ohio-4700, 979 N.E.2d 289. We sanctioned Judge Elum with a stayed six-month suspension for this misconduct. 

Charges here were filed in November 2015

On May 11, 2015, Antonio Pettis approached Judge Elum in the Massillon Municipal Court parking lot and requested the judge’s legal assistance regarding a dispute with his landlord, Susan Beatty. Pettis told Judge Elum that although he had money to pay his rent, Beatty would not accept it. Judge Elum recognized Pettis because the day before, the judge’s wife, a former school teacher, had invited Pettis into the judge’s home to assist him with a scholarship application. In the parking lot, Judge Elum agreed to help Pettis and took him into his chambers.

Judge Elum then called Beatty and, according to the judge, identified himself as “Eddie Elum from the Massillon Court.” Judge Elum urged Beatty to accept Pettis’s late rent payment. After Beatty told the judge that Pettis had violated his lease and that she had already given him a three-day notice to vacate, the judge proceeded to discuss with Beatty the amount of Pettis’s security deposit and inquired whether she would give him two additional days to remove his belongings from the property. During the nine-minute phone call, Judge Elum openly, and within Beatty’s hearing, consulted with Pettis. At one point, Beatty told Judge Elum that she may have already changed the locks on the property, and the judge responded that she could not do that without a writ of restitution. The judge also asked that she have her lawyer contact him. 

Pettis moved out of the rental property the following day, and according to Beatty, he left furniture and trash on the lawn, which required her to rent a dumpster. Judge Elum later called Beatty on two occasions—purportedly to inquire whether the matter was resolved and to inform her that he had not heard from her lawyer. Beatty, however, did not return the judge’s phone calls. Beatty was surprised and intimidated by Judge Elum’s initial phone call and felt bullied in light of the fact that he was a judge. She later filed the grievance that initiated this disciplinary action.

Since then, Judge Elum has admitted that calling Beatty was a mistake, that he should not have injected himself into a dispute that was not on his docket, and that he was not an appropriate person to mediate the disagreement between Pettis and Beatty. At his disciplinary hearing, the judge also testified that he understood how Beatty could have perceived his phone call as advocating on behalf of Pettis and against her. The judge stated:

As a lawyer, I have been trained to resolve disputes. As a judge, I know I’ve got to step back and can’t get involved. Unfortunately, I let my heart do my thinking for me. And I went and tried to put two people together to resolve a rental dispute that got way out of hand because there was a lot of facts that I was not privy to. And I got myself in quicksand and I made a terrible mistake. 

Sanction

Having considered Judge Elum’s ethical infractions, the aggravating and mitigating factors, and the sanctions imposed in comparable cases, we adopt the board’s recommended sanction. Judge Edward Joseph Elum is hereby suspended from the practice of law for one year, with the entire suspension stayed on the condition that he commit no further misconduct. If Judge Elum fails to comply with this condition, the stay will be lifted and he shall serve the entire oneyear suspension. Costs are taxed to Judge Elum.

The earlier disciplinary case - with its colorful language recited in full - is linked here. (Mike Frisch)

December 21, 2016 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Saturday, December 17, 2016

OK To Serve Food And Beverages But Not To Serve On Host Committee

The Florida Judicial Ethics Advisory Committee has an opinion

Opinion Number: 2016-20
Date of Issue: November 28, 2016

ISSUES

1. May the inquiring judge serve on a local bar association committee formed to host a golf tournament, which is a fundraising event for the Guardian Ad Litem Foundation, an entity that appears in every dependency case coming before the judge?

ANSWER: No.

2. May the inquiring judge attend the golf tournament and assist with organizational tasks such as setting up the silent auction, serving food and beverages, setting up hole sponsor signs, taking pictures, and other non-fundraising tasks?

ANSWER: Yes.

Reasoning

Canon 5A(1) requires that a judge conduct all extra-judicial activities so that they do not “cast reasonable doubt on the judge’s capacity to act impartially as a judge.”  Canon 5C(3) permits a judge to serve as an officer, director, trustee or non-legal advisor of an educational, religious, charitable, fraternal, sororal or civic organization not conducted for profit, subject to the limitations and the other requirements of the Code of Judicial Conduct.” However, Canon 5C(3)(a) provides that “[a] judge shall not serve as an officer, director, trustee or non-legal advisor if it is likely that the organization (i) will be engaged in proceedings that would ordinarily come before the judge, or (ii) will be engaged frequently in adversary proceedings in the court of which the judge is a member or in any court subject to the appellate jurisdiction of the court of which the judge is a member.”

Service on the committee charged with the responsibility of raising funds for an entity that appears in every dependency case coming before the inquiring judge “casts reasonable doubt on the judge’s capacity to act impartially as a judge” as prohibited by Canon 5A(1), even if the inquiring judge is engaged in non-fundraising activities as a member of the committee.

Mere attendance at a fundraising event does not violate the Canons. Specifically, Canon 5C(3)(b) permits the inquiring judge to attend the golf tournament and assist with organizational tasks such as setting up the silent auction, serving food and beverages, setting up hole sponsor signs, taking pictures, and other non-fundraising tasks.

Play on! (Mike Frisch)

December 17, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Monday, December 5, 2016

A Question Of Authority In Judicial Ethics Opinions

The Georgia Supreme Court has ordered reconsideration of an opinion of the Judicial Qualifications Commission that deals with excluding children from a courtroom and the ability of security personnel to inquire of court visitors

On August 28, 2013, the Judicial Qualifications Commission rendered Formal Advisory Opinion No. 239, which concerns Canon 2 (A) of the former Code of Judicial Conduct. In pertinent part, Canon 2 (A) provides that “[j]udges shall respect and comply with the law,” and Opinion No. 239 concerns the obligation of judges to respect and comply with the constitutional guarantee of the right of public access to judicial proceedings. Concerned that Opinion No. 239 reflects some misunderstandings about the scope of that right and the extent to which it is clear and settled in the decisional law, the Council of State Court Judges asked the Commission to reconsider portions of Opinion No. 239. The Commission, however, declined to reconsider, and so, on July 10, 2015, the Council filed a petition with this Court, seeking a review of Opinion No. 239. In its response to the petition, the Commission conceded our authority to review its formal advisory opinions, but the Commission urged us to deny review of Opinion No. 239 on the merits.

On September 8, 2015, we granted the petition for review, and we directed the Commission and the Council to file briefs addressing the extent to which Opinion No. 239 rests upon clear and settled principles of constitutional law. The Commission and the Council filed briefs, but the Commission also filed a motion to dismiss, repudiating its earlier position, and contending for the first time that this Court is without authority to review the Commission’s formal advisory opinions. We heard oral argument on November 2, 2015. Having carefully considered the arguments of the Commission and the Council, we now conclude that this Court has authority to review formal advisory opinions rendered by the Commission, and we conclude as well that Opinion No. 239 reflects some misunderstandings about the extent to which the scope of the right of public access to judicial proceedings is clear and settled in the decisional law. Accordingly, pursuant to JQC Rule 22 (b), we direct the Commission to reconsider Opinion No. 239 consistent with the opinion of this Court.

Holding on authority

Our authority to review formal advisory opinions rendered by the Commission is necessarily implied by JQC Rule 22, and to the extent that JQC Rule 22 itself is constitutional — it is, and the Commission concedes that it is — our exercise of that implied authority in no way impairs the constitutional prerogative of the Commission to discipline judges. This Court has the authority to review Opinion No. 239 upon the petition of the Council, and the motion of the Commission to dismiss this matter is denied.

On the merits

To the extent, however, that Opinion No. 239 endeavors to extrapolate broader principles of law from these precedents, it raises the worrisome prospect that the Commission has wandered into a field of law that is unclear and unsettled, something that is beyond its purview. The Council contends that the Commission has done exactly that by its identification of certain acts and practices as constitutionally intolerable...

The Council asserts that the law is not clear and settled that the constitutional guarantee of the right of public access extends to children, and the Council likewise contends that the law is not clear and settled that inquiries by security personnel amount to a closure in violation of the constitutional guarantee. With respect to these aspects of Opinion No. 239, we agree that the Commission has gone beyond a mere interpretation of Canon 2 (A) and has wandered into unclear and unsettled areas of constitutional law.

According to Opinion No. 239, a practice of excluding children as a class from judicial proceedings is unconstitutional. We note, however, that none of the precedents cited in Opinion No. 239 concerns the admission of children of tender years to a courtroom, and whether children are constitutionally entitled to the same extent as adults to attend court seems to be an open and debatable question...

Given the current state of the law, fair-minded jurists may reasonably disagree about the extent to which the constitutional guarantee of the right of public access to judicial proceedings requires the admittance of children of tender years, and decisions to admit or exclude children do not, without more, implicate Canon 2 (A).

And

Opinion No. 239 says that it is unconstitutional for court staff or security personnel to inquire of a courthouse visitor about the reasons for his visit. The law, however, is not clear and settled on this point. Certainly, a court has an obligation “to take reasonable measures to accommodate public attendance” at least with respect to the public’s right to attend criminal trials...

Neither this Court nor the United States Supreme Court has decided that no questions ever may be asked of persons seeking admittance to the courthouse or a courtroom, and we note that a number of federal courts have held that requiring such persons to produce photo identification prior to their admittance does not violate the constitutional guarantee of the right of public access...So long as court staff and security personnel understand that a member of the public is entitled to attend court whether or not he has a case pending therein, no clear and settled law prohibits court staff and security personnel from inquiring of persons seeking admittance about what has brought them to the courthouse.

In an apparent effort to limit its scope, Opinion No. 239 says that the practices that it identifies as unconstitutional are only “generally” improper. That offers little comfort, however, to judges who must address these issues every day. If a judge were to carefully consider the law and honestly determine that she ought to do what the Commission has deemed constitutionally intolerable, she then would have to choose between following the law as she understands it or yielding to the contrary understanding of the Commission. In those circumstances, following the law as she understands it would expose the judge to disciplinary proceedings, even if those proceedings ultimately would vindicate the judge. To permit the Commission to put a judge in that position would compromise the independence of the judiciary. Until it is clear and settled in the decisional law whether and to what extent the practices at issue are unconstitutional, it is not for the Commission to opine about what the Constitution means. Accordingly, we direct the Commission to reconsider Opinion No. 239 consistent with the opinion of this Court.

(Mike Frisch)

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

Thursday, November 17, 2016

Facebooking Judge Suspended

A judge's Facebook proclivity has led to a six-month suspension by the South Carolina Supreme Court.

An estate was opened in Oconee County for the estate of Z.H. Z.H.'s parents had filed a wrongful death suit on behalf of the estate against the Seneca Police Department. The case was settled with the family for the sum of $2,150,000. Due to the public nature of the case, the settlement received extensive press coverage. 

Despite the matter being before the probate court for administration of the estate, respondent expressed his opinion about the settlement on Facebook posting: "In the end it's all about the money. Always. Unfortunately, I see it EVERYDAY." Respondent later added: "Once ck is in hand, they'll disappear."

A review of respondent's Facebook account revealed that he has made extensive political posts, including ones in which he appears to endorse the presidential candidacy of one candidate. A review of respondent's Facebook account further revealed a post in which he engaged in fundraising for a local church. Respondent's Facebook account identifies himself as the probate court judge for Oconee County and the account, along with all of respondent's posts, were accessible to all members of Facebook.

Respondent greatly regrets his conduct with regard to the estate of Z.H. matter and is sorry for any distress that it may have caused Z.H.'s family. Respondent recognizes that, while he did not mention the estate of Z.H. by name on Facebook, it was inappropriate for him to make the statements as it would be clear in the community to what he was referring. Respondent also recognizes that it was inappropriate for him to make political posts and to post information about a fundraiser for a local church.

Respondent has now removed reference to himself as a judge on his Facebook page. He submits that he is deeply embarrassed about the matter and seeks to assure the Court that, in the future, he will not make reference to anything involving his court and will refrain from making political posts or posting fundraising information on Facebook or any other social media. Respondent is extremely proud of the Oconee County Probate Court and wants to assure the Supreme Court that he will do nothing further that could damage the reputation of the probate court.

Sanction

We find respondent's misconduct warrants a six (6) month suspension from judicial duties, retroactive to April 12, 2016, the date of his interim suspension. We therefore accept the Agreement for Discipline by Consent and suspend respondent from office for six (6) months.

(Mike Frisch)

November 17, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)