Tuesday, May 9, 2017

Judge Censured

The North Carolina Supreme Court has censured a judge for drunk driving and a belligerent attitude

On 25 April 2016, the Commission Counsel filed a Statement of Charges against Respondent alleging that he had

engaged in conduct inappropriate to his judicial office when, on December 16, 2015, he drove his vehicle recklessly and while substantially impaired, putting at risk his own life and the lives of others [and that] Respondent’s belligerent, offensive, and denigrating behavior towards the responding law enforcement officers and emergency personnel was outrageous and unbecoming of a judicial officer, bringing into question whether it is appropriate for the Respondent to continue to serve as an Emergency Judge...

Respondent filed an answer in which he admitted the factual allegations in the Statement of Charges and expressed remorse “for this uncharacteristic lapse in judgment.” On 2 August 2016, Respondent and Commission Counsel filed a number of joint evidentiary, factual, and disciplinary stipulations as permitted by Commission Rule 22 that tended to support a decision to censure Respondent. Also, Respondent “voluntarily resigned his commission as an Emergency Judge, and agree[d] not to seek another commission in the future.” On 12 August 2016, the Commission heard this matter.

The sanction implicated both the driving and the attitude

The clear, cogent and convincing evidence supporting the Commission’s findings of fact show[s] that Respondent engaged in belligerent, offensive and denigrating behavior towards local law enforcement and emergency personnel as they executed their official duties and attempted to assist Respondent during the incident underlying these proceedings.

The court

After careful review, this Court concludes that the Commission’s findings of fact, including the dispositional determinations set out above, are supported by clear, cogent, and convincing evidence in the record. In addition, we conclude that the Commission’s findings of fact support its conclusions of law. As a result, we accept the Commission’s findings and conclusions and adopt them as our own. Based upon those findings and conclusions and the recommendation of the Commission, we conclude and adjudge that Respondent should be censured.

The News & Observer reported on the matter.

LaBarre, 71, was on the bench in Durham, either as a District Court Judge or Superior Court Judge, from the late 1970s until 2002. After that, he served as an emergency judge who was called back to the bench on occasion.

(Mike Frisch)

May 9, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, May 4, 2017

Defending Your Judgeship

The Florida Supreme Court sanctioned a judge for a misrepresentation in a campaign ad

[Then-attorney Shepard’s] selective editing of the [Orlando Sentinel’s] 1994 endorsement, in context, was much more than a matter of inexact punctuation, or a mistake. . . . [Then-attorney] Shepard believed Mr. Katz to be unworthy of judicial office, and that any action she undertook to defeat him was justified. In doing so, she knowingly misled the public by campaign literature which implied that she was endorsed by the Orlando Sentinel, when this was untrue.

Judge Shepard asserts that Canon 7A(3)(e)(ii) is unconstitutional as applied to her judicial campaign advertisement. Specifically, Judge Shepard claims that she cannot be punished for distributing four true statements regarding her reputation for character and integrity and correctly attributing those statements to the Orlando Sentinel. But the so-called “four true facts” were distorted and misrepresented because they were taken out of context. Judge Shepard violated Canon 7A(3)(e)(ii)’s “other fact” clause by “knowingly misrepresent[ing] facts” surrounding the Orlando Sentinel’s 1994 endorsement in her judicial campaign advertisement. In re Judge Kimberly Michele Shepard, No. 14-488, at 22 (Fla. Jud. Qual. Comm’n June 9, 2016). Then-attorney Shepard “knowingly,” id. at 19, and “deliberate[ly],” id. at 13, deleted from the advertisement “the intervening sentence . . . of the paragraph of the [Orlando Sentinel’s 1994] endorsement . . . without any indication,” id. at 9. That sentence stated: “She has legislated effectively.” Id. at 5 (emphasis omitted). The advertisement thus falsely purported to quote language from the endorsement verbatim when, in fact, it “was substantially edited to delete all reference to [then-attorney] Shepard’s legislative service.” Id. at 9. The record on review further demonstrates that then-attorney Shepard knew how to use, and used, an ellipsis to indicate an omission within a quotation on the opposite side of the same advertisement. Additionally, the 1994 date of the Orlando Sentinel endorsement and the end sentence of the paragraph of the endorsement relating to her legislative service were omitted from the advertisement. As explained by the Hearing Panel, “The Judge’s selective editing of the [Orlando Sentinel’s] 1994 endorsement, in context, was much more than a matter of inexact punctuation, or a mistake. . . . [Then-attorney] Shepard believed Mr. Katz to be unworthy of judicial office, and that any action she undertook to defeat him was justified.” Id. at 15. The First Amendment does not protect such knowing misrepresentations of fact by candidates for judicial office. 

The court rejected a host of due process contentions

We conclude that clear and convincing evidence supports the Hearing Panel’s finding that Judge Shepard violated Canon 7A(3)(e)(ii). At the final hearing, the Hearing Panel received and accepted into evidence the judicial campaign advertisement at issue and the Orlando Sentinel’s 1994 endorsement. Then-attorney Shepard’s advertisement purports to quote language from the Orlando Sentinel’s 1994 endorsement verbatim. It does not. The intervening sentence of the paragraph of the 1994 endorsement relating to her legislative service was deleted from the advertisement without any indication. Additionally, the 1994 date of the Orlando Sentinel endorsement and the end sentence of the paragraph of the endorsement relating to her legislative service were omitted from the advertisement...

Judge Shepard disclaimed any intent to deceive or mislead. However, after considering the evidence and the testimony of the witnesses, the Hearing Panel found that then-attorney Shepard knowingly misrepresented facts surrounding her 1994 endorsement in her advertisement. The Hearing Panel specifically found that then-attorney Shepard knowingly and deliberately deleted from the advertisement the intervening sentence of the paragraph of the 1994 endorsement relating to her legislative service without any indication and that she omitted from the advertisement the 1994 date of the Orlando Sentinel endorsement. Then-attorney Shepard also omitted from the advertisement the end sentence of the paragraph of the 1994 endorsement relating to her legislative service. As explained by the Hearing Panel, then-attorney Shepard’s selective editing of the 1994 endorsement, in context, was much more than a matter of inexact punctuation, or a mistake. The Hearing Panel concluded that then-attorney Shepard believed her opponent to be unworthy of judicial office and that any action she undertook to defeat him was justified. A review of the record thus demonstrates that clear and convincing evidence supports the Hearing Panel’s finding that Judge Shepard violated Canon 7A(3)(e)(ii).


Judge Kimberly Michele Shepard is hereby suspended without pay for ninety days from her duties as a judge of the Ninth Judicial Circuit. We order Judge Shepard to pay investigative costs and the costs of these proceedings, and we remand this case to the JQC for a determination of the amount of such costs. We also command Judge Shepard to appear before this Court for the administration of a public reprimand at a time to be set by the Clerk of this Court.

The Orlando Sentinel reported on the hearing.

Shepard's presentation to the panel sometimes seemed to veer off track. In openings, she compared her plight to the 1991 movie "Defending your Life," an Albert Brooks film in which the main characters goes to "Judgment City" after he dies.

And in closings, Shepard used a visual aid of the viral dress that polarized people over its color scheme in an online image — was it blue and black or gold and blue? — to show her case was all about perception.

"Having your integrity attacked because you quoted a source who said you had integrity is no small matter," she said, calling the experience "painful."

In the 2014 election, Shepard defeated opponent Norberto Katz, a child-support hearing officer, with 60 percent of the vote. She is serving a six-year-term on the bench with an annual salary of more than $146,000.

(Mike Frisch)

May 4, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Monday, May 1, 2017

Shoved Off The Bench

The Indiana Supreme Court accepted a judge's resignation with a reprimand

Respondent is not a lawyer. At about 5:30 p.m. on August 16, 2016, he went to the Dunkirk Police Department for a meeting with City of Dunkirk Mayor Gene Ritter (“Mayor”) and Dunkirk Chief of Police Dane Mumbower (“Chief Mumbower”) to discuss several issues of conflict between the police department and the city court. Early in the meeting, Respondent began having a heated verbal exchange with Chief Mumbower, who started to leave the meeting. The heated exchange continued, and Respondent shoved Chief Mumbower in the midsection. The Mayor calmed both men down and asked Chief Mumbower to stay to discuss the matters of concern that had prompted the meeting, and the meeting continued until about 7:38 p.m.

The Jay County Sheriff’s Office investigated the incident a few days later. Then on September 29, 2016, Respondent was charged in Jay Superior Court with Battery Against a Public Safety Official as a Level 6 felony in case number 38D01-1609-F6-000165. Respondent pleaded guilty to the charge under a plea agreement providing for the conviction to be treated as a misdemeanor at sentencing. At sentencing, the trial court entered judgment of conviction against Respondent for Battery Against a Public Safety Official as a misdemeanor and sentenced him to 365 days in the Jay County Jail, all suspended to one year of probation, with 100 hours of community service to the U.S. Department of Veterans Affairs as a condition of probation.

Respondent and the Commission agree that, by being convicted for Battery Against a Public Safety Official, 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 self reported his misconduct; that he cooperated with the Commission during its investigation; that he actively sought and has continued treatment to address some of the underlying issues that resulted in his misconduct and continues to work with his counselor; and that he is remorseful for his conduct. They also agree that under the circumstances, the appropriate sanction is a public reprimand on the condition that Respondent will tender his resignation as the Dunkirk City Court judge effective April 28, 2017, that he shall not be eligible for future judicial service, and that he pays the costs of this proceeding. The Court agrees with the parties.

(Mike Frisch)

May 1, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Friday, April 28, 2017

Field Of Honor

From the Florida Judicial Ethics Advisory Committee


May a judge submit a letter to a municipality supporting the dedication of a little league baseball field in the name of the judge’s deceased former bailiff?



The judge’s former bailiff recently passed away. During his life, he was very active in little league baseball. The former bailiff’s family is petitioning the city to dedicate one of its little league baseball fields in his name. The City Council has suggested the family provide letters of support from the community, and the inquiring judge has been asked to write a letter supporting dedication of the ball field. The inquiring judge has certified that there is no solicitation of monetary contributions or other donations associated with the request to the city and that the judge’s letter will not be used for any of those purposes.


The type of letter involved in this inquiry is more akin to those letters that are allowed by the Code and by the JEAC opinions referred to above. This letter will contain the judge’s recommendation, based solely upon the judge’s personal knowledge of the deceased bailiff. This letter will not be sent in a matter where there is an adjudicatory or investigative proceeding. At most, the letter may be considered to be tangentially related or appealing to a government body which will decide to bestow an honorary title (a privilege) in memory of a deceased person. However, this is not the type of “privilege” contemplated by either the Code or the JEAC opinions. The prohibited type of privileges are those which will benefit a living individual or ongoing business interest who may be seeking to be granted a benefit or license the likes of which, if awarded, would bestow on petitioner a legal right. See, e.g., JEAC Op. 13-08. The decision in the subject matter for which the letter is to be used, rests solely upon the discretion of the city council and would not bestow any rights or privileges of that sort.

In conclusion, this Committee finds that the inquiring judge may write a letter to the city council based upon the judge’s personal knowledge.

(Mike Frisch)

April 28, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Friday, April 21, 2017

Dunk A Judge

The South Carolina Advisory Committee on Standards of Judicial Conduct opines

FACTS A full-time magistrate is married to the executive director of a non-profit organization. The spouse is holding a fund-raiser and has asked the judge to participate as a volunteer in the dunk tank. The advertising materials for the fund-raiser would not reference the judge’s status as a magistrate, but instead, would have “dunk the spouse of the director” language. The judge would not be required to solicit any funds for the organization.

CONCLUSION A full-time magistrate judge may participate as a volunteer in a dunk tank for a non-profit organization run by the judge’s spouse in these circumstances.


We have previously found that a full-time judge could participate as a dancer in a fundraiser for a religious organization, where the judge would not personally solicit funds and the judge’s title would not be used in promotional materials. See, Op. No. 11-2013. The factual situation presented here is similar to that of Opinion No. 11-2013. Thus, as long as the magistrate complies with the Canon prohibiting personal solicitation of funds, and does not use the prestige of judicial office in the advertising of the fund-raiser, the judge may participate in the fund-raiser as a volunteer in the dunk tank.

(Mike Frisch)

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

Tuesday, April 18, 2017

Trial Tax?

Dan Trevas has a summary of a case decided today by the Ohio Supreme Court

If a criminal defendant gets a harsher sentence than one offered in a plea bargain, any allegation that the judge imposed the sentence as a “trial tax” must be supported with evidence  that clearly and convincingly demonstrates the judge acted vindictively, the Ohio Supreme Court ruled today.

A Supreme Court majority found Malik Rahab failed to prove a Hamilton County Common Pleas Court judge’s six-year sentence for burglary was based on vindictiveness after Rahab informed the judge he was rejecting a three-year sentence offered by prosecutors. The judge told Rahab he would most likely receive a longer sentence if he lost at trial.

In the Court’s lead opinion, Justice R. Patrick DeWine wrote that any claim that a judge is acting vindictively must be based on the entire record of the trial court proceeding. The Court ruled Rahab’s sentence was based on the facts of the case and his criminal past, not on vindictiveness on part of the trial judge.

Justice DeWine also noted Ohio will not adopt a presumption that a judge is acting vindictively when a defendant rejects a plea bargain and receives a harsher sentence when convicted.

In a partial dissenting opinion, Fourth District Court of Appeals Judge Maria M. Hoover, sitting on the Court by assignment, agreed with the majority’s position about how to evaluate a vindictiveness claim. But she concluded the judge threatened Rahab to forgo his right to a trial or suffer a longer sentence.

Rahab, Judge Discuss Impact of Plea Rejection
Rahab was charged with the 2014 burglary of the home of Christina Hewitt. Hewitt noticed her living room window was open and her purse was missing. A fingerprint from the window implicated Rahab. At a pretrial hearing, Hamilton County prosecutors informed the trial judge that Rahab was offered, and rejected, their recommendation of a three-year sentence.

The trial judge asked Rahab if he understood the potential sentence for the crime was a prison term ranging from two to eight years. The judge also informed Rahab that the court does “not look highly on cases where people don’t take responsibility and accept that they did something wrong if they’re found guilty.” The judge added that a conviction would most likely result in more time than the plea offer.

Hewitt testified at Rahab’s trial, and he was convicted. At a sentencing hearing, Rahab claimed he wanted to admit to the crime all along, but his attorney made him go to trial. When asked by the judge why he did not accept the plea, he replied he thought his crime did not justify a three-year prison term. The judge responded that Rahab’s logic was confusing because he refused to take the plea even as he admitted to the crime and after he was informed that he could be sentenced to eight years.

The judge then said to Rahab: “So I don’t know what you talked about with your attorney, but—too late. You went to trial. You gambled, you lost. You had no defense. And you even admit that you did it, and yet you put this woman through this trial again.”

Rahab apologized to the judge, and his brother addressed the court detailing Rahab’s difficult childhood. His brother asked the court not to sentence Rahab to eight years for one bad decision.

In delivering the six-year sentence, the judge told Rahab: “Well, guess what, you lost your gambling. You did this. You had no defense, and you wouldn’t take responsibility. You wanted to go to trial. All right, big winner you are.”

Rahab Claims Vindictiveness
Rahab appealed his sentence to the First District Court of Appeals, arguing the judge increased his sentence for exercising his constitutional right to a jury trial, and that the judge’s comments support the inference that the judge was acting vindictively when determining the time in prison. The First District affirmed the conviction and Rahab appealed to the Supreme Court, which agreed to hear the case.

Citing the Ohio Supreme Court’s 1989 State v. O’Dell decision, the opinion explained that a sentence vindictively imposed because a defendant sought a jury trial is invalid, but defendants are faced with the difficult task of proving vindictiveness. Rahab sought to reduce the burden by asking the Court to adopt a standard that would infer vindictiveness based on the trial court’s statements, the ruling explained. A judge would then have to make an “unequivocal statement” that the decision to go to trial was not considered as part of the sentence to demonstrate the lengthier sentence was not prompted by vindictiveness.

The opinion noted that the concept of a presumption of vindictiveness stems from the 1969 U.S. Supreme Court decision in North Carolina v. Pearce in which the defendant successfully appealed a conviction, then when retried and convicted again, the same trial judge gave the defendant a more severe sentence for the exact same conviction as the first one. Justice DeWine wrote that the U.S. Supreme Court has sharply limited the Pearce ruling and that subsequent development of the law has allowed judges to consider leniency for those accepting a plea bargain. He noted that a presumption of vindictiveness would apply only in those limited situations when there was a “reasonable likelihood” that the sentence was a product of actual vindictiveness.

Plea Bargains Must Be Bargains to Be Effective
The ruling noted there are legitimate reasons why a defendant who forgoes a plea bargain might get a harsher sentence, including the fact that courts can consider whether the accused accepted responsibility for the crime. The Court also explained that to be effective, a plea bargain must be a bargain, where in exchange for sparing the government the time and expense of a trial, the defendant has a reasonable expectation that the offered sentence in a plea deal would be less than what would be imposed following a trial conviction.

Because there is not a reasonable likelihood that a sentence harsher than what was offered during plea negotiations is a result of vindictiveness, no presumption applies. The defendant must prove actual vindictiveness, and Rahab did not, Justice DeWine concluded.

“The (trial) court’s intemperate statements are troubling. No court should give the appearance that it is chiding a defendant for exercising his constitutional right to a jury trial. But the statements can’t be read in isolation,” he wrote.

The Court held that the judge’s statement allowed Rahab to intelligently evaluate his options because the prosecution was suggesting a sentence near the minimum term while the judge was informing Rahab that he could face up to eight years. The opinion also noted that in the context of the sentencing hearing the judge expressed concern that Rahab did not admit or express remorse for his crime until after he was found guilty, and that Rahab subjected the victim to the trauma of a trial even though he knew he committed the crime.

Justice DeWine also wrote the trial judge had  a great deal of information to consider before imposing sentence, including a report from Rahab’s drug treatment program case manager who testified Rahab had not fared well in treatment and was not complying with program rules. The judge also learned at sentencing that Rahab, who was 19 years old when convicted, had been adjudicated delinquent 22 times as a juvenile, including once for robbery.

“In short, the trial court had a great deal of information to consider before it imposed the sentence—Rahab’s lack of genuine remorse, the impact of his conduct on the victim, his poor performance in treatment, his lengthy juvenile record, and his difficult upbringing,” the opinion stated. “No doubt it would have been better had the court’s words not hinted at a frustration with Rahab’s rejection of the plea bargain. But given the record before us, we are not convinced that the court sentenced Rahab based on vindictiveness, rather than on the evidence of his prior record, insincere remorse, and the impact of his crime on the victim.”

Justice Judith L. French joined Justice DeWine’s opinion. Chief Justice Maureen O’Connor and Justices Terrence O’Donnell and Sharon L. Kennedy concurred in judgment only.

Dissent Finds Judge Acted Vindictively
Judge Hoover, who joined the Court for the case after Justice Patrick F. Fischer recused himself, wrote that she found the judge clearly and convincingly sentenced Rahab vindictively. She noted the record included several “intemperate statements” from the trial judge and that they were made to express the judge’s dissatisfaction with Rahab’s choice to go to trial.

“Of particular concern are the trial court’s remarks made prior to trial. At that time, the trial court had not yet had the benefit of hearing evidence, nor did it know of Rahab’s prior criminal history or apparent lack of remorse; yet it had already determined that Rahab would receive a harsher sentence if he rejected the state’s offer and exercised his right to a jury trial,” she wrote.

Judge Hoover disagreed with the lead opinion that the trial judge was attempting to ensure Rahab understood his options, and interpreted the remarks as a threat to Rahab for not taking a plea.

“The majority’s conclusion that the trial court did not act vindictively in this case creates a nearly impenetrable barrier to proving actual vindictiveness. If the trial court’s actions in this case do not amount to vindictiveness, then what behavior would satisfy that burden?” she wrote.

Judge Hoover wrote the decision may have a chilling effect on criminal defendants’ willingness to exercise their constitutional rights to a jury trial.

Justice William M. O’Neill joined Judge Hoover’s opinion.

2015-1892. State v. Rahab, Slip Opinion No. 2017-Ohio-1401.

Video camera icon View oral argument video of this case.

(Mike Frisch)

April 18, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Monday, April 17, 2017

Ohio Opines On Ethics Of Email Solicitations

A staff report from the web page of the Ohio State Bar

The Ohio Board of Professional Conduct today issued advisory opinions on lawyer advertising and the representation of clients by a former magistrate. The opinions update and replace opinions previously issued by the Board under the former Code of Professional Responsibility and the former Code of Judicial Conduct.

In Advisory Opinion 2017-3, the Board provides guidance for lawyers who desire to use unsolicited emails as a form of advertising to attract new clients.

As a general rule, lawyers are not permitted to solicit clients through in-person contact, real-time electronic contact, or by live telephone. However, other forms of non-direct solicitation by lawyers are permissible. The Board advises that email is a form of an indirect communication that may be utilized by lawyers seeking new clients. When using email as a form of advertisement, the lawyer must abide by other conduct rules including avoiding misleading communications, not engaging in unwanted communications or harassment, and adding a disclaimer that the email is an “Advertisement Only.” The opinion also advises that a lawyer may use third-party services to send the emails, as long as the lawyer maintains responsibility for the actions of the service and the content of the emails. The opinion updates and withdraws former Adv.Op 2004-1.

In Advisory Opinion 2017-04, the Board considered the ability of a former magistrate, now practicing law, to represent a domestic relations client, post-decree, in a matter originally heard by the magistrate.

The Board advises that a former magistrate may not represent the client, unless all parties give informed consent, in writing, to the representation. If the former magistrate is not permitted to represent the client, no lawyer in the former magistrate’s firm may represent the client unless the former magistrate is timely and properly screened by the firm, receives no part of the fee, and written notice is provided to the parties and the court.

The Board also advises that under the Ohio Ethics Law, the former magistrate is prohibited for 12 months from representing a client in any matter the former magistrate personally participated before leaving public office. The opinion updates and withdraws former Adv. Op. 2005-5.

(Mike Frisch)

April 17, 2017 in Economics, Judicial Ethics and the Courts, Law & Business | Permalink | Comments (0)

Thursday, April 13, 2017

Judge To The Rescue

The South Carolina Advisory Committee on Standards of Judicial Conduct blesses a magistrate's 911 service

A full-time magistrate is also a certified paramedic. For many years, the judge has worked part-time as a paramedic in a 911 setting in a county different than the one in which the judge presides. However, the judge plans to retire from the 911 service and instead work part time for a non-emergency service that would provide services to several counties, including the one in which the judge presides as magistrate. The job would entail transporting patients from hospital to hospital, home to doctor’s facilities, etc. These would be non-emergency patients who cannot utilize traditional means of transportation. Further, from time to time, the judge may be requested to cover a public event as first aid personnel. The judge does not believe that there will be any situations in which he would come into contact with law enforcement at said events. Furthermore, the events would fall under the jurisdiction of the municipal court, rather than the magistrate court. The judge inquires as to whether he may accept such part-time employment.

Good to go

We have addressed employment by full-time magistrate in previous opinions (See, e.g., 13-2005, 9-2014). The Code of Judicial Conduct does not prohibit part-time employment by a full-time magistrate. Canon 4D(3) permits a judge to serve as employee of a business entity “if that service does not conflict with the judge’s judicial duties[.]” Rule 501, SCACR. The commentary to that Canon states that a judge’s participation may be prohibited if “participation requires significant time away from judicial duties.” In addition, all of judge’s extra-judicial conduct must avoid activities that cast reasonable doubt on the judge’s ability to act impartially and the judge must avoid the appearance of impropriety. Canon 4; Canon 2.

Here, it does not appear that the accepting part-time employment with a non-emergency medical transport service would conflict with the Canons. However, the judge should regularly re-examine the judge’s activities with regards to employment to determine if it is proper to continue such affiliation.

(Mike Frisch)

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

Tuesday, April 11, 2017

Manifest Necessity

The Delaware Superior Court denied a criminal defendant's motion to dismiss on double jeopardy grounds here the trial judge had recused himself

Ms. Marvel moves for dismissal of the charges brought against her. On October 27, 2015, Ms. Marvel was arrested, and after she waived her right to a trial by jury, her case was scheduled for a bench trial. Within a week of when Ms. Marvel’s trial was to begin, an investigator from the Department of Justice contacted Ms. Marvel’s mother. The investigator asked Ms. Marvel’s mother whether she had worked for the courts and if she had ever worked for the trial judge. The Department of Justice conducted its investigation of Ms. Marvel’s mother without the knowledge of defense counsel.

The trial judge conducted an office conference on February 21, 2017, the day before the start of trial. During the course of that conference, the State informed the trial judge and defense counsel that

about a year and a half ago, November of 2015, when I started trying this case, I met with [defense counsel]. He did mention . . . your Honor had perhaps worked with the defendant’s mother in the past and your Honor had specifically requested as a favor that [defense counsel] take this case. We did contact the defendant’s mother and she indicated that she had worked in Chambers but not with your Honor directly.

When the State made this information known, both the trial judge and defense counsel indicated that they had no recollection of these circumstances.  Defense counsel reiterated in his reply brief that he had no knowledge of such a conversation nor did he have knowledge of the trial judge asking him to take the case as the Office of Defense Services appointed him to represent Ms. Marvel.  After learning that the Court did not have a concern about a potential conflict of interest, the State consented to a bench trial. Ms. Marvel’s defense counsel informed the Court that he did not see a conflict.  After discussing the evidence that both parties intended to present during the trial, the trial judge consented to a bench trial.

The State called five witnesses at the trial. The judge then sent this email 

[i]t has come to his attention that the defendant in this case is [a friend’s] daughter. I think this presents a problem with my going forward to the case. Moreover, I do not believe that the problem can disappear simply by having counsel ‘agree that we are satisfied that the Court will be completely impartial’ or any such thing. I am open to hearing any input anyone has on the subject. . . . Since counsel for the defendant first requested a bench trial, I’m a little surprised that this fact wasn’t made known to me before we started. Possibly it wasn’t known by him either. In any event, I certainly do not look at this as a fault of either the State or the Court. Hence, no issue of double jeopardy would come into play.

But after a teleconference, the judge concluded

[b]ecause of the belated understanding of the Court that Defendant Marvel is the daughter of a long time friend of the bench trial Judge, who is, in essence, the entire jury in this case, the continuation of the trial (presently approximately one-half completed) cannot go forward to verdict. To state the obvious, this is the equivalent of all twelve jurors, after the first day of testimony, reporting to the Court that they are friends with the defendant’s mother, but had been unaware of that association until the completion of the first day of trial. Upon application of the State, without comment by the defense, and in concordance with the belief of the Court, a MISTRIAL, not the result of any impropriety on the part of the State or the Court, must be declared.


under the circumstances of this case, the Court finds that the trial judge declared a mistrial out of manifest necessity. As there was manifest necessity, double jeopardy does not bar the State from retrying the charges against Ms. Marvel. This conclusion is not altered by whether defense counsel objected to the decision or not.19 Therefore, this Court does not decide whether the defense counsel’s actions prior to the declaration of a mistrial were sufficient to constitute an objection.

(Mike Frisch)

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

Judge Must Explain Chesley Judgment Actions

The Ohio Supreme Court has entered an order directing Judge Ralph Winkler to respond to a writ of prohibition 

the Court ordered respondent Hamilton County Probate Judge Ralph Winkler to file a response by 10 a.m. Thursday, April 13, 2017, to a motion seeking to prevent him from taking further action in a case regarding former Ohio attorney Stanley Chesley and former Chesley clients seeking to enforce a judgment against him.

 The court ruled last year in connection with efforts to enforce the Kentucky judgment in Ohio.

 The Boone County, Kentucky, Circuit Court has entered a multimillion dollar judgment against former attorney Stanley M. Chesley. Denied relief from the judgment by the Kentucky courts, Chesley has turned to the courts of Ohio to thwart collection of the judgment and relitigate the case. And Chesley has found a receptive audience in the respondent, Hamilton County Common Pleas Court Judge Robert Ruehlman. In Chesley v. Ford, Hamilton C.P. No. A1500067, Judge Ruehlman has repeatedly acted to shield Chesley and his assets from creditors, despite a patent lack of jurisdiction.

Relator, Angela M. Ford, seeks a writ of prohibition to preclude Judge Ruehlman from continuing to exercise jurisdiction over the Hamilton County case. Chesley and his former law firm, as intervenors, oppose this request on the merits and also based on a claim of mootness. We grant a peremptory writ of prohibition and order Judge Ruehlman to vacate his orders. We deny Ford’s request for a writ of mandamus.

(Mike Frisch)

April 11, 2017 in Judicial Ethics and the Courts | Permalink | Comments (1)

Friday, April 7, 2017

Kansas Sanctions Former Judge Who Lied In Disciplinary Hearing

The Kansas Supreme Court affirmed findings of judicial misconduct against a former judge.

 This is an original disciplinary proceeding against Honorable Timothy H. Henderson, former District Judge of the Eighteenth Judicial District, sitting in Sedgwick County (Respondent). This is a correlate case to a 2015 proceeding against the Respondent that resulted in a 90-day suspension imposed by this court. See In re Henderson, 301 Kan. 412, 343 P.3d 518 (2015). The present case involves Judicial Code charges that he was dishonest to the tribunal in responding to the violations in the earlier case.

In 2014, a panel of the Kansas Commission on Judicial Qualifications (Commission) initiated an investigation of the Respondent under Docket No. 1197. Following an evidentiary hearing, a separate panel (Panel B) found that the Respondent had violated the Kansas Code of Judicial Conduct and recommended to this court that it discipline him by public censure. The panel specifically confirmed misconduct set out in three counts: a pattern of engaging in inappropriate, sexually themed discourse with members of the Sedgwick County District Attorney's office; exhibiting bias or prejudice against an attorney based on socio-political outlooks, as well as engaging in ex parte communications involving an impending legal action; and abusing the power of his office in communications regarding employment of his wife as a public school teacher. The facts are recited in detail in Henderson, 301 Kan. 412. After the Respondent filed no exceptions to the factual findings of the hearing panel, this court upheld those findings and imposed a 90-day suspension without pay. 301 Kan. at 427.

The court rejected his contention here that he cannot be sanctioned further since he is no longer a judge

The duty to protect the public from malfeasance by judges does not terminate the moment a judge steps down from office. A judge may not evade public responsibility and our jurisdiction based on the misconduct simply by stepping away from the bench when the misconduct is revealed. As the Alaska Supreme Court noted in Johnstone, the purpose of judicial discipline is the protection of the public...

The conduct of which the Respondent is accused, including lying to the hearing panel, took place while he was occupying a position of judicial authority. In his response to the findings of the hearing panel and even after he resigned from his office, the Respondent refused to acknowledge wrongdoing. It would be disrespectful both to the public and to the witnesses whose reputations he impugned if we were to abdicate our responsibility of judicial supervision by dismissing the complaint merely because the Respondent walked away from his responsibilities.

And it did not violate his rights to bring a fresh case 

It would have been improper to include the new charges in the earlier proceeding. Because the charges arose out of the Respondent's testimony in that proceeding, the Commission could not have given him meaningful notice of the new charges.


 Here, the Respondent's misconduct undermines the public's faith in the very judicial office he took a sworn oath to uphold. Because the Respondent is no longer serving as a judge, the sanctions of suspension or removal are not available.

We conclude the findings of the panel are supported by clear and convincing evidence.

IT IS THEREFORE ORDERED that this opinion shall be published in the official Kansas Reports.

Video of the oral argument linked here. (Mike Frisch)

April 7, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, April 5, 2017


A motion to disqualify a Judge of Compensation Claims was improperly denied, according to a recent decision of the Florida First District Court of Appeal

The motion to disqualify was based on a comment allegedly made by the JCC after a lengthy video teleconference (VTC) hearing that was inadvertently picked up by the VTC equipment and overheard by Petitioners’ attorney. Specifically, the motion alleged that "[f]ollowing the dismissal of counsel and the party, the [JCC] turned in his chair, and spoke to an off camera staff member, saying ‘was I nice and sweet and patient to let the attorney talk on and on and on ad nauseam’?" The JCC summarily denied the motion as legally insufficient.

We agree with the JCC that the motion was legally insufficient. The comment attributed to the JCC did not specifically single out Petitioners’ attorney as the loquacious one, and even if it had, that would not establish an objectively reasonable basis for Petitioners to fear that the JCC was biased against them. See Letterese v. Brody, 985 So. 2d 597, 599 (Fla. 4th DCA 2008) (finding motion to disqualify based on judge’s comment that he had heard the parties’ arguments "ad nauseum" to be legally insufficient and explaining that although "[a] judge must not be unduly biased against a party or prejudge a matter [], after hearing the evidence and arguments, a judge must be permitted to ‘judge’").

Notwithstanding the legally insufficiency of the motion, we are compelled to grant the petition because the response voluntarily filed on behalf of the JCC by the Office of Judge of Compensation Claims (OJCC) attempted to refute the alleged partiality of the JCC by asserting—without any record support—that JCC "did not interrupt or raise his voice to counsel" and that he "allowed both sides to fully make their arguments, resulting in what would normally be a 5 to 10 minute hearing lasting over an hour." This was improper because it effectively placed the JCC in an adversarial posture with Petitioners by impermissibly suggesting that the allegations in the motion to disqualify were an incomplete account of the factual circumstances bearing on the JCC’s impartiality.

Hat tip to sunEthics. (Mike Frisch) 

April 5, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, March 30, 2017

Hagar Slacks

The North Dakota Supreme Court suspended a judge for lack of diligence in a domestic case

Richard L. Hagar, judge of the district court for the North Central Judicial District, filed exceptions to the Judicial Conduct Commission's recommended findings that he violated provisions of the Code of Judicial Conduct by failing to diligently and promptly decide judicial matters assigned to him and by failing to work with the presiding judge. He also objects to the Commission's recommended sanction. We conclude there is clear and convincing evidence Judge Hagar violated N.D. Code Jud. Conduct Rules 2.5 and 2.7. We order that Judge Hagar be suspended from his position as district court judge for three months without pay and that he be assessed $10,118.67 for the costs and expenses of the disciplinary proceedings.

He had previously been suspended for one month without pay for similar lapses.

On January 26, 2012, eight days after our issuance of the Hagar decision, Judge Hagar began presiding over a two-day divorce trial in the case of Block v. Block, Civil Case No. 51-10-C-02045. Because the parties had agreed to the divorce and to the division of marital property, the central remaining disputed issue in the case was the primary residential responsibility for the parties' two children. During the ensuing months, the plaintiff's attorney contacted district court personnel on several occasions to check the status of the decision. After three months had passed, the attorney sent correspondence to the court again asking about the status of the decision. Judge Hagar's court reporter responded that the judge anticipated the decision would be completed by May 23, 2012. After another four months passed without receiving a decision, the attorney on September 22, 2012, sent a letter to Judge Hagar inquiring about the status of the case and the need for a determination of the primary residential responsibility for the children and the necessity of placing the property settlement on the record. After receiving no response from Judge Hagar, the attorney on November 8, 2012, sent a letter to the presiding judge of the district informing him about the problems obtaining a decision in the Block case. Judge Hagar thereafter issued a decision, and a divorce judgment was entered on November 16, 2012, almost ten months after the trial.


Judge Hagar has been a district court judge for seven years and has been censured for similar conduct in the past. Although this proceeding involves an unreasonable delay in only one case as compared to the 12 delays involved in the prior disciplinary proceeding, it occurred in close proximity to Judge Hagar's censure. The record supports the Commission's finding that "there was detriment to the plaintiff [in Block] from the delay with regard to housing of the children and receipt of property." Judge Hagar's conduct has tarnished the integrity of and respect for the judiciary as evidenced by the refusal of the plaintiff in Block to consider appealing the decision because, according to her attorney, "by that point she was so absolutely, totally disgusted with the system." Judge Hagar offered no excuse for his failure to act diligently on the Block case.

Judge Hagar has shown remorse and a willingness to modify his conduct. However, contrary to Judge Hagar's written plan for meeting docket currency standards adopted in the prior disciplinary proceeding, the record indicates he did not adequately use Odyssey reports or his court staff to remedy the situation. Judge Hagar objects to imposition of a suspension as a sanction because of the "burden" it would impose on his colleagues and the citizens of the state. He offers no alternative recommendation. Judge Hagar cannot escape discipline merely because of its effect on the judicial system and his fellow judges.

This Court's disciplinary orders are not intended to be "'empty noise.'" Disciplinary Board v. Lucas, 2010 ND 187, ¶ 18, 789 N.W.2d 73 (quoting Disciplinary Board v. Larson, 512 N.W.2d 454, 455 (N.D. 1994)). The censure issued in the previous disciplinary proceeding did not deter Judge Hagar from repeating his improper conduct.

(Mike Frisch)

March 30, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Judge May Judge Miss America Prelims

Did not see this one coming from the Florida Judicial Ethics Advisory Committee

Opinion Number: 2017-08
 Date of Issue: March 15, 2017


1. May a judge serve as a “judge” for preliminary Miss America pageant competitions?


2. As a corollary inquiry, the inquiring judge seeks a determination whether the Canons prohibit participation at a pageant competition by showcasing a talent, such as singing.

ANSWER: The Canons do not prohibit the inquiring judge from participation at a pageant competition by showcasing a talent, such as singing, subject to the Code’s requirement that the judge act “at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”



The inquiring judge seeks guidance as to whether the Code of Judicial Conduct would permit the inquiring judge to serve as a “judge” at preliminary Miss America pageant competitions. Miss America pageant competitions provide opportunities for young women to promote their voices in culture, politics, and the community. Miss America contestants working towards college or postgraduate degrees can earn scholarship awards to help further their education.

Miss America pageant competitions are sponsored by the Miss America Organization. According to its website, the Miss America Organization is the nation’s leading provider of scholarships for young women, awarding millions annually in cash awards and in-kind tuition waivers. The Miss America Organization is an IRC 501(c)4 non-profit organization. The Miss America Organization is comprised of fifty-two licensed organizations, including all fifty states, Washington, D.C., and Puerto Rico. The inquiring judge would potentially serve as a “judge” in connection with state and local preliminary competitions by one or more of these licensed organizations. The adjudged winner of a pageant competition is awarded a scholarship and moves on to other pageant competitions.

The Miss America Foundation, Inc. is a registered IRC 501(c)(3) organization, which is a separate stand-alone foundation that supports the educational mission of the Miss America Organization of providing scholarship assistance to women, regardless of their background circumstances.

The participation of the inquiring as a “judge” in the pageant competition will not be advertised in advance of the competition, although a biography of the inquiring judge will be included in the competition program. The biography will note that the inquiring judge is a member of the judiciary. It is anticipated the program would include photograph of the judge appearing in a family photograph.

The activities of the inquiring judge would be limited to being an actual judge at the pageant, and no fundraising activities or membership solicitation would be involved in connection with service as a “judge” of pageant competitions. An admission fee will be charged to those who attend the pageant competition, which is used to offset the costs of the venue where the pageant competition is held.


 A member of the Committee dissents from the advice provided herein.

(Mike Frisch)

March 30, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Monday, March 27, 2017

The Full Ginsburg

The New York Commission on Judicial Conduct has censured a Supreme Court Justice who gave three interviews in one day about a mistried murder case.

Crimesider reported on the eventual dismissal of the charges brought against a former Cornell student accused of murdering his father.

Tan was charged in February after sheriff's deputies called to the family's home in an upscale neighborhood in Pittsford, a Rochester suburb, found his father dead from multiple shotgun wounds. The elder Tan owned an imaging technology company in nearby Canandaigua.

Prosecutors said Charles Tan killed his father because he was abusive to his wife. The younger man was enrolled at Cornell University in Ithaca, New York, at the time of the slaying.

The judge's decision to dismiss the charges incensed Gargan and District Attorney Sandra Doorley. Gargan said Piampiano failed to look at the evidence presented during the trial. Doorley said her office is researching whether the decision can be appealed, she said.

During the trial, prosecutors said Charles Tan called a high school friend in early February and had him purchase a shotgun at a Wal-Mart in Cortland, near Ithaca. Authorities said Tan's mother, Qing "Jean" Tan called 911 on Feb. 9 to report that her son had shot her husband.

When deputies arrived, they discovered Jim Tan had been shot as he sat behind a desk in the second-floor office of the family home he also shared with his wife and their younger son. Charles Tan was arraigned on second-degree murder charges the next day.

The order tells the story of the judge's star turn.

...on or about October 8, 2015, at a time when he was a candidate for election to the Supreme Court, respondent gave three separate media interviews during which he made prohibited public comments about People v Charles J Tan, a pending murder case over which he was presiding in Monroe County Court.

...after [a] mistrial was declared, respondent was contacted by personnel from three media outlets: WHEC-TV, Channel 10, the NBC-affiliated television station in Rochester; WHAM-TV, Channel 13, the ABC-affiliated television station in Rochester; and the Democrat & Chronicle, a daily newspaper in Rochester. Respondent agreed to engage in one-on-one interviews about People v Tan in his chambers with reporters from each of the three media outlets.

On or about October 8, 2015, at approximately 4:00 PM, respondent met in his chambers with a reporter from WHEC-TV, Channel 10. The resulting interview was recorded and portions of it were broadcast on October 8, 2015, and subsequently available on the television station's website at http://www.whec.com. 

On or about October 8, 2015, at approximately 4:30 PM, respondent met in his chambers with a reporter from WHAM-TV, Channel 13. The resulting interview was recorded and portions of it were broadcast on October 8, 2015, and subsequently available on the television station's website at http://13wham.com/. 

On or about October 8, 2015, respondent met in his chambers with a reporter from the Democrat & Chronicle. The resulting interview was recorded and portions of it were posted on October 8, 2015, on the newspaper's website at http://www.democratandchronicle.com/. The audio portion of the interview was posted at the website https://soundcloud.com/democrat-and-chronicle/judge-james-piampianointerview-oct-8-2015.

And in court

On or about November 5, 2015, while presiding over a post-trial proceeding in People v Charles J Tan, during which respondent granted the defense motion for a trial order of dismissal, respondent, as set forth below, failed to be patient, dignified and courteous when he denied Monroe County Assistant District Attorney William T. Gargan's attempt to be heard and threatened to have Mr. Gargan arrested if he spoke.

MR. GARGAN: Judge, may I briefly speak?

RESPONDENT: No, you may not. If you speak I'm going to put you in handcuffs and put you in jail.

The Commission

Although respondent's comments indicate that he was aware of the ethical prohibition (at one point he stated, "I'm not at liberty to discuss the prosecutor's remarks or this case in particular") and he was also aware that there would be further proceedings in the case, including a potential re-trial, he granted three one-on-one media interviews in which he proceeded to discuss the case at length. While he often responded to the reporters' questions about the Tan case with general statements about procedures and the legal system, he should have recognized that any statements he made in that context would be understood as pertaining to Tan and therefore were problematic. His statements, however, went well beyond general explanations of the law. He discussed legal issues in the case (including his denial of a request for an accomplice charge), and he provided a description of his interactions with the jury and his sense of the jury's deliberations. Especially troubling is his description of the defendant as a "sympathetic" figure. Even if viewed in the context of the reporter's question about the "possible impact" of the defendant's "supporters," his comment could convey an appearance that respondent viewed the defendant sympathetically, raising doubts about his impartiality and thus undermining public confidence in the impartial administration of justice. This is especially so since the case was still before him and since, a month later, he granted the defense motion for a trial order of dismissal. The fact that respondent made these statements in media interviews at a time when he was a candidate for election to Supreme Court raises a question as to whether his public comments were motivated by political concerns...

It was also improper for respondent, in a post-trial proceeding a month later, to threaten to have the prosecutor placed in handcuffs and put in jail when the attorney asked to speak as respondent was announcing his decision on the defense motion to dismiss. (The record indicates that respondent had previously afforded the prosecutor an opportunity to be heard on the motion.) By asking to speak, the prosecutor was simply doing his job, and even if respondent believed that the attorney was interrupting or speaking out of turn, his response was a substantial overreaction to the attorney's conduct...

In accepting the jointly recommended sanction, we note that respondent has admitted that his conduct was inconsistent with the ethical standards and has pledged to conduct himself in accordance with the Rules for the remainder of his tenure as a judge.

The commission's determination is linked here.

WHAM Rochester had a recent story on the appeal of the dismissal in the Tan case. (Mike Frisch)

March 27, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, March 23, 2017

As Sober As A Judge

A circuit court judge must adhere to an agreement to comply with treatment under the supervision of the Kentucky Lawyers Assistance Program ("KYLAP").

The judge was the subject of 13 charges of misconduct and submitted to an evaluation. He disclosed that he drank 2-3 vodkas, 3-4 times a week "alone."

He entered into an agreement in which he admitted ten violations and accepted a period of suspension followed by abstinence and monitoring by KYLAP.

He objected to the supervision and the sobriety requirement.

The Kentucky Supreme Court held him to his bargain, noting that the judge found the agreement "inconvenient and a detriment to the enjoyment of his time off the bench" but was nonetheless enforceable given the admitted misconduct.

The Lexington Herald Leader reported on the ethics case.

At the hearing Monday, Combs acknowledged he made harassing or contentious phone calls to city officials about several things, including a fine against his mother-in-law over a city ordinance, and that he used his official stationery to send city officials requests for information on nonjudicial matters.

Combs said he didn't recall calling city officials derogatory names such as "cokehead" and "dumbo," as the commission charged, but he said there was a good-faith basis for the charges.

He also admitted making improper calls to officers at the Pikeville Police Department, accusing them of making false arrests, hectoring them over people parking in the private lot of the church he attends, and calling police thieves and trash.

The conduct commission charged that in one case Combs told a police captain that the next officer who pulled Combs over would get a "bullet in the head."

Combs said he did not recall that remark or calling officers names, but again acknowledged there was a basis for the charge.

The longtime judge also acknowledged he presided over cases involving Equitable Production, an oil and gas exploration company, without disclosing in the court record that he had a business relationship with the company.

Combs is part owner of a company that leased drilling rights to Equitable. He allegedly made a belligerent call to Equitable at one point, accusing the company of shorting him on lease payments during a time the company had a case in his court, though he gave up that case.

Combs said that his tie to the company was well known and that he thought he had disclosed it properly.

Combs also acknowledged a charge that he improperly took part in political activity, including chastising people for supporting certain candidates.

He criticized city commission members before the 2014 election and expressed an interest in the outcome, but then he presided over a lawsuit challenging the election and disqualified a candidate, according to the charges.

The commission dismissed a charge that Combs posted improper comments on the gossip website Topix, and parts of two other charges were dismissed.

(Mike Frisch)

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

Wednesday, March 22, 2017

Long Delay Benefits Accused Judge

The New York Commission on Judicial Conduct has censured a town court justice

The record before us demonstrates that in performing his judicial duties in several cases in 2010 and 2011, respondent overreached his judicial authority, misapprehended his role as a judge and failed to comply with well-established legal requirements. As respondent has acknowledged, he deserves to be disciplined for his behavior, which was inconsistent with ethical standards requiring every judge, inter alia, to be an exemplar of courtesy, to be faithful to the law and maintain professional competence in it, and to accord to every person with a legal interest in a proceeding the right to be heard according to law (Rules, §§100.3[B][3], 100.3[B][l], 100.3[B][6]). Although it appears that in many respects respondent's conduct was well-intentioned and  that his errors of law were isolated and unintentional, it is not disputed that he disregarded his ethical obligations and abused the power of his office.

Most serious, we Respondent's remarks regarding Mr. Colbert's appearance, delivered at two believe, was respondent's misconduct in connection with the Colbert and  Stuper matters.

Respondent's remarks at two separate court appearances five months apart, were improper and unfitting for a judge. At a time when the young defendant facing serious charges was appearing before the judge to report on his treatment and later for sentencing, respondent commented on Mr. Colbert's nose piercing and ear gauges, remarking, inter alia, "What's that thing in your nose? ... When I was a kid we used to do that to all the bulls on the farm"; "What is going on with your earlobes?"; "Aren't those bigger than the last time I saw you? ... Why would you do that?" Further, in sentencing Mr. Colbert to a conditional discharge on a plea to Driving While Intoxicated in satisfaction of multiple serious charges, respondent advised him, "Additional [sic] ... you don't increase the size of your earlobes for the next twelve months. Because if I do have to look at you again, I don't want to look at that." As the referee aptly stated, "That these comments were aimed at a twenty one year old young man struggling with a substance abuse problem only accentuates their inappropriateness."

The jusge stated that he was merely trying to "relax the atmosphere" of the court.

The second matter

In the arraignment of defendant Matthew Stuper on a Harassment charge, which occurred on the same date that respondent sentenced Mr. Colbert, the transcript of the proceeding indicates that respondent increased the bail from $3,500 to $5,000 with no explanation after Mr. Stuper indicated that he was prepared to post the initial amount, suggesting that respondent increased the amount simply because the defendant could post it.

A concurring opinion by Member Emery

The Commission's Determination fairly describes the mitigating factors which support the result we reach. One of them, however, deserves a bit more elucidation, in my view. The chronology of this case, though long delayed for reasons not in the record, has ironically aided this judge in his quest to remain on the bench. The events took place more than five years ago and the record before us does not reveal any similar misconduct before or, more importantly, since. Because we took so long to bring this case to conclusion, the judge plainly benefited from his, apparently, blemishless record. Ironically, the delay in this case supports the conclusion that Judge Clark has demonstrated that he can perform his duties properly and effectively and thus is not  a threat to the public.

By noting this factor in this case, I do not want to imply that we should suspend our process so that a judge can demonstrate her fitness after misconduct has occurred. I do not think there was any intent to allow this case to meander for so long. It is indisputable that delays of this length are bad for the judge, the Commission and the public. It just so happens that in this case, notwithstanding that the charges pending against the judge must have weighed heavily on his mind, the lengthy delay and the judge's ability to function effectively during the pendency of his case worked to his benefit.

(Mike Frisch)

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

Friday, March 10, 2017

Judge Not Responsible For Campaign Efforts Of Friends

The Alaska Supreme Court has dismissed charges against an unnamed judge

Following a disciplinary sanction, a judge was not recommended for retention by the Alaska Judicial Council. Although the judge chose not to campaign, an independent group supported his retention and campaigned on his behalf. After the election the Alaska Commission on Judicial Conduct filed a disciplinary complaint against the judge and later imposed an informal private admonishment on the judge because he did not publicly address allegedly misleading statements made by the independent group. Because the statements clearly originated with the independent group rather than the judge, and the judge had no knowledge of one statement, the judge had no duty to publicly address any of the statements. Accordingly, we reverse the Commission’s admonishment and dismiss the Commission’s complaint against the judge.

The story after the judge declined to campaign

A close friend of the judge’s wife learned about the Council’s recommendation and decided to fund an independent campaign to support the judge’s retention. She was careful not to share her decision with the judge or his wife. A few weeks before the election she hired a local agent and told him “to put a face to the name and tell folks about [the judge]’s background and experience.” The agent registered an independent expenditure group called “Friends of [the Judge],” and his team produced mailers, billboards, social media advertisements, and a website for the campaign. The friend was the sole financial contributor, and the agent exercised nearly complete control over the campaign’s messaging.

The judge was kept ignorant of the independent campaign, and the judge had no control over the campaign’s activities. The friend stated that she “did not tell [ the judge or his wife] of [her] plans, did not involve them in any way in any of the campaign activities, did not solicit or seek their input, and did not request their review or approval of the plans or any materials.” Likewise, the agent said the judge had “no awareness or influence . . . . He didn’t approve anything that we put out there.” The agent did arrange to meet the judge in person and “snap[] a couple photographs” for the campaign, but the judge “seemed a little confused as to who [he] was.” The agent told the judge only that he was “a fan of [the judge] and [they had] mutual friends.”

Although the judge was aware that he had supporters, he was not aware that there was a campaign. The judge avoided campaigning himself but understood from his counsel that allowing an anonymous supporter to take his photograph would not be improper. He rejected all other requests, telling supporters who wanted to help that he was not involved in any campaigns.

Shortly after the election, the Commission initiated a complaint against the judge, alleging material misrepresentations in the items circulated by the campaign. The Commission later clarified that it was investigating the judge’s duty to correct the independent campaign’s alleged misrepresentations. The Commission focused its attention on three specific campaign items: a mailer, the website, and a social media advertisement...

The social media advertisement featured an image of the judge tied to a stake and surrounded by flames with the caption: “Witch Hunts are so 18th century.” The agent’s team had digitally altered the judge’s facial expression, added the stake and flames, and come up with the concept and text. The “witch hunt” image was used only online.

The court had the power to consider the merits

As a preliminary matter the Commission argues that we should not exercise our power of review over its informal private admonishments. The Commission makes three arguments: (1) the statute governing the Commission’s disciplinary authority does not contemplate our review of informal  admonishments; (2)informal admonishments are an important tool that will be compromised if they are subject to our review; and (3) an informal admonishment is not a sanction and therefore not a formal action to be reviewed. We are not persuaded.

The merits

We agree with the judge’s argument that a judicial candidate’s awareness of an independent campaign is not, by itself, enough to impose a duty to monitor and address the campaign’s statements. Such a duty might force the candidate to wade into the fray, creating tension with the candidate’s obligation to “maintain the dignity appropriate to judicial office.”  Such a duty might also chill others’ protected speech in violation of the U.S. and Alaska Constitutions.

But we do not suggest that a judicial candidate’s failure to address a known third party misrepresentation would never violate a canon. There may be situations where a candidate must address an independent statement in order to uphold judicial integrity and independence, avoid impropriety, or maintain dignity...

This duty is “one of taking ‘reasonable precautions’ to avoid having ‘a negative effect on the confidence of the thinking public in the administration of justice.’ ”

The independent campaign produced a mailer and a website containing two prominent quotes. The Commission found that the quotes gave the false impression that another judge and the Commission endorsed the judge’s retention. Both the mailer and the website stated that they were “Paid for by Friends of [the Judge]” and that the communications were “not authorized, paid for or approved by the candidate.” As required by law, the disclaimer was placed so as to be “readily and easily discernible.”

We conclude that the judge had no duty to publicly address the quotes or these materials. We reject the Commission’s conclusion that the judge knowingly misrepresented facts in violation of Canon 5A(3)(d)(iii); the record contains no evidence suggesting that the judge had knowledge of the mailers before they were distributed, let alone involvement or control in the selection of the quotes.

As to the witch hunt imagery

The independent campaign also produced a social media advertisement featuring an image of the judge tied to a stake with the caption, “Witch Hunts are so 18th century.” The Commission stated that the image was “inappropriate to the dignity appropriate to judicial office.” The judge agrees that the image was “clearly inappropriate” and that the independent group should not have used the image. However, the judge maintains that he did not see the image until well after the election.

We conclude that the judge had no duty to publicly address the image. There is nothing in the record to contradict his claim that he had no knowledge of the advertisement until well after the election; therefore he could not have knowingly misrepresented facts in violation of Canon 5A(3)(d)(iii). We also see no appearance of impropriety; a reasonable person viewing the ad would not believe that the judge had authorized the image or was involved in its production merely because he was the image’s subject. And because the judge did not learn about the image until months after the election, he could not have taken any steps to avoid such an appearance and accordingly could not have violated Canon 2. The judge’s consent to be photographed did not give rise to a duty to seek out and monitor an independent campaign he could not legally control, let alone a duty to stop any independent group from publishing any image. The judge should not be admonished for his failure to publicly address a social media image which he had no duty to address and which he did not even know about until months after the election.

Complaint dismissed. (Mike Frisch)

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

Thursday, March 9, 2017

Food And Drink No Violation Of Judicial Ethics

 From the Florida Judicial Ethics Advisory Committee

Opinion Number: 2017-04
Date of Issue: March 7, 2017


1. May a judge allow law-related organizations and a private law firm to jointly host a free post-seminar reception at the judges’ courthouse?


2. May a judge accept food/drink provided by the organizations/law firm at such an event?



The inquiring judge has organized, for judges and attorneys, a free diversity training seminar which will take place at the judge’s courthouse. Continuing Legal Education and Continuing Judicial Education credit hours are expected to be awarded. The Circuit’s Chief Judge has approved this event and use of the courthouse, as well as approving informative fliers prepared by the inquiring judge which were distributed by the judge and fellow judges in their respective hearing rooms.

Three local law-related organizations and a local personal injury firm have contacted the judge and offered to jointly host a free post-seminar reception for all of the anticipated 200-400 seminar attendees. The organizations consist of a legal aid group, a women lawyers association, and an African-American lawyer association. Both of the latter two groups are open to all Florida attorneys. The judge has not solicited any of these groups or the firm to host the reception, and none of them have any special relationship with any of the judges (federal and state) who will be presenting at the seminar. Light food/drink items (possibly hors d’oeuvres and/or alcoholic beverages) may also be provided.


Diversity training is mandatory for judges; organization and participation in such a free program (as opposed to a fund-raising seminar) is permitted and indeed encouraged. Fla. Code Jud. Conduct, Canon 4B; see also Fla. JEAC Op. 87-3 (A judge may participate in a legal seminar which is sponsored by a private law firm); Fla. JEAC Op. 99-27 (A judge may attend, but not participate, in a bench/bar professionalism seminar when the event includes fund-raising).

Free courthouse seminars are commonplace. As to the use of the judge’s courthouse for this seminar, this Committee sees no impropriety as set forth in Canon 2B (“A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge.”).

The judge is also inquiring about the appropriateness of accepting any food/drink provided by the hosts at the reception. Canon 5D(5) of the Code prohibits gifts that judges may receive, with several exceptions. One such exception permits a judge to accept a gift if the donor is not a party or other person who has come or is likely to come or whose interests have come or are likely to come before the judge; and if its value exceeds $100.00, the judge reports it in the same manner as the judge reports compensation in Canon 6B. To the extent that any small food/drink items are consumed by the judge, a majority of this committee feel that such are inconsequential and do not constitute a gift.

Four of the twelve committee members believe that the food/drink provided by the hosts is a gift to the judge pursuant to Canon 5D which may be accepted (subject to the donor “not likely to come before the judge” restrictions set forth in the Canon), and must be reported if the aggregate value of the food/drink exceeds the $100.00 threshold. In Op. 99-3, the committee approved a judge’s former law firm sponsoring and paying for an investiture reception and related expenses, and opined that the total expenses should be reported as a gift. The majority in this committee, however, see a significant distinction between a judge’s personal investiture reception and a judge’s organization of a law-related seminar for purposes of determining what constitutes a gift.

 (Mike Frisch)

March 9, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, March 7, 2017

Judge Censured, Not Removed, For Refusal To Conduct Same-Sex Marriages

A judicial misconduct decision of the Wyoming Supreme Court

Judge Ruth Neely objects to the Wyoming Commission on Judicial Conduct and Ethics’ (Commission) recommendation that she be removed from her positions as municipal court judge and part-time circuit court magistrate because of her refusal to perform same-sex marriages in her judicial capacity as a part-time circuit court magistrate. We conclude, as have all the state judicial ethics commissions that have considered this question, that a judge who will perform marriages only for opposite-sex couples violates the Code of Judicial Conduct, and we hold that Judge Neely violated Rules 1.2, 2.2, and 2.3 of the Wyoming Code of Judicial Conduct. However, we do not accept the Commission’s recommendation for removal, and instead order public censure, with specific conditions.

The judge had sought guidance from the Judicial Ethics Advisory Committee by asking

Without getting in too deeply here, homosexuality is a named sin in the Bible, as are drunkenness, thievery, lying, and the like. I can no more officiate at a same sex wedding than I can buy beer for the alcoholic or aid in another person’s deceit. I cannot knowingly be complicit in another’s sin. Does that mean I cannot be impartial on the bench when that homosexual or habitual liar or thief comes before me with a speeding ticket? Or the alcoholic appears before me for yet another charge of public intoxication? No. Firmly, no. I have been the municipal court judge for the Town of Pinedale for over 20 years; and there has not been one claim of bias or prejudice made by anyone who has come before me. Not the homosexual, not the alcoholic, not the liar, not the thief. Not one.

No answer was forthcoming.

The court majority

Our conclusion that Judge Neely’s expressed refusal to conduct same-sex marriages violates the Code of Judicial Conduct is in line with every other tribunal that has considered the question. The judges in In re Matter of: The Honorable Gary Tabor and In re Roy S. Moore, were disciplined for their conduct. Five state advisory commissions offered opinions, consistently stating that a judge may not perform judicial functions for some parties while declining to perform them for same-sex couples without violating the Code of Judicial Conduct: Supreme Court of Ohio, Board of Professional Conduct, Opinion 2015-1, Judicial Performance of Civil Marriages of Same-Sex Couples (August 7, 2015) (a judge may not decline to perform same-sex marriages, and may not  decline to perform all marriages in order to avoid marrying same-sex couples); Supreme Court of Wisconsin, Judicial Conduct Advisory Committee, Opinion No. 15-1 (August 18, 2015) (judge may not decline to perform only same-sex marriages, but may decline performing all marriages); Arizona Supreme Court, Judicial Ethics Advisory Committee, Revised Advisory Opinion 15-01, Judicial Obligation to Perform Same-Sex Marriages (March 9, 2015) (judge may not distinguish between same-sex and opposite-sex couples); Nebraska Judicial Ethics Committee Opinion, Opinion 15-1 (June 29, 2015) (a judge who is willing to perform traditional marriage manifests bias or prejudice by refusing to perform same-sex marriage); Judicial Conduct Board of Pennsylvania Newsletter, Impartiality in Solemnizing Marriages, by Elizabeth A. Flaherty, Deputy Counsel, Judicial Conduct Board (No. 3 Summer 2014) (judge who decides not to perform wedding ceremonies for same-sex couples must opt out of officiating at all wedding ceremonies). Only in Mississippi Comm’n on Judicial Performance v. Wilkerson, 876 So.2d 1006, 1016 (Miss. 2004), did the tribunal find that a judge’s comments disparaging gays and lesbians did not violate the Code of Judicial Conduct. But there, only the judge’s speech as a private citizen was at issue; not his conduct as a judge, and there was no issue of performing marriages. See Boland, 975 So.2d at 892 (distinguishing Wilkerson on basis that judge in Boland made remarks while acting in her judicial capacity).


Weighing these factors, we find that Judge Neely’s misconduct warrants a public censure. We further find that Judge Neely must perform her judicial functions, including performing marriages, with impartiality. She must either commit to performing marriages regardless of the couple’s sexual orientation, or cease performing all marriage ceremonies. This does not mean, as the dissent suggests, that no judge can now turn down any request to perform a marriage. What it means is that no judge can turn down a request to perform a marriage for reasons that undermine the integrity of the judiciary by demonstrating a lack of independence and impartiality. This is no different than allowing parties to exercise the right to peremptory challenges of jurors for any reason, while prohibiting them from challenging jurors on the basis of race or gender...

We decline to remove Judge Neely from her position as a municipal court judge; such a punishment would “unnecessarily circumscribe protected expression,” and we are mindful of our goal to narrowly tailor the remedy.

Justice Kautz dissented

This case is of the utmost importance to the State of Wyoming. It is a case confronting new and challenging issues, where the parts of the legal landscape recently changed dramatically and rapidly.16 Contrary to the position asserted by the majority opinion, this case is about religious beliefs and same sex marriage. The issues considered here determine whether there is a religious test for who may serve as a judge in Wyoming. They consider whether a judge may be precluded from one of the functions of office not for her actions, but for her statements about her religious views. The issues determine whether there is room in Wyoming for judges with various religious beliefs. The issues here decide whether Wyoming’s constitutional provisions about freedom of religion and equality of every person can coexist. And, this case determines whether there are job requirements on judges beyond what the legislature has specified...

There is no cause for discipline in this case, nor for concern if Judge Neely is not disciplined or precluded from performing marriages. Same sex couples have full access to marriage, all persons before the courts can be certain of an unbiased and impartial judiciary, and religious individuals can remain in public office even if they hold a traditional religious view of marriage. Judicial positions are filled without either side insisting on a religious test for who may serve. There is room enough in Wyoming for both sides to live according to their respective views of sex, marriage and religion.

I respectfully dissent, and would find that Judge Neely did not violate the Wyoming Code of Judicial Conduct.

Justice Davis joined the dissent.

The judge had sought summary judgment in the judicial misconduct proceeding.

The motion explains comments made to a reporter that had led to the action

On Friday, December 5, 2014, Judge Neely was attempting to hang Christmas lights outside her home. Frustrated with the project, she came inside to untangle a hopelessly intertwined strand of lights. Judge Neely checked her cell phone and saw that she missed a call from an unknown number. She almost immediately returned the call, as is her habit because unknown numbers are often from people attempting to reach her about official town work.

Upon dialing the unknown number, Judge Neely reached Ned Donovan. She identified herself, and Mr. Donovan informed her that he was the person who had called her. He told Judge Neely that he was a reporter for the Pinedale Roundup and asked if she was excited to be able to start performing same-sex marriages. Judge Neely, distracted at the time, struggling to remove her bulky winter clothing and holding an armload of Christmas lights, did not immediately recall Judge Haws's earlier guidance to refrain from commenting on the matter. She reflexively and truthfully answered Mr. Donovan's question, telling him that her religious belief that marriage is the union of one man and one woman precludes her from officiating at same-sex weddings. Mr. Donovan then proceeded to ask Judge Neely more about her personal views regarding marriage.  During the remainder of that call, Judge Neely told Mr. Donovan that other government officials in town were willing to perform same-sex marriages, that she had never been asked to perform one, and that she had never denied anyone anything. (citations to record omitted)

(Mike Frisch)

March 7, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)