Tuesday, September 8, 2015

Outside The Window

Two judges have been admonished for similar conduct by the New York State Commission on Judicial Conduct.

The commission's press releases are linked here and here.

From 2006 to 2013 Judge Fleming directly and/or indirectly through his law firm made 71 ticket purchases totaling $11,960.55, and two ticket purchases through his spouse totaling $400, to politically sponsored dinners or functions, outside the judge’s “window period”1 of permissible political activity. The judge’s law firm also made 27 prohibited contributions totaling $12,533.48 to political organizations and candidates.

The Commission noted that the Rules, Advisory Opinions and its own decisions over the years have long made it clear that judges may not directly or indirectly make political contributions, with certain narrow exceptions applicable to a limited time when they are running for office.

One Commission member dissented. Richard D. Emery argued that the rule prohibiting political contributions by judges was inconsistent with the First Amendment.

The Commission addressed Mr. Emery’s dissent, noting that the Court of Appeals has upheld the constitutionality of the contributions rule.

Judge Fleming has served as a Justice of the Hamburg Village Court since 2006. His current term expires on April 2, 2018.

And

From 2003 through January 2014, Judge Sakowski directly made 69 prohibited political contributions totaling $20,633, and another 36 totaling about $2,851 through his law firm. Twenty-seven of the contributions by his law firm were for tickets to politically sponsored events outside the judge’s “window period”1 of permissible political activity.

The Commission noted that the Rules, Advisory Opinions and its own decisions over the years have long made it clear that judges may not directly or indirectly make political contributions, with certain narrow exceptions applicable to a limited time when they are running for office.

Three Commission members dissented. Richard D. Emery and Joseph W. Belluck argued that the rule prohibiting political contributions was inconsistent with the First Amendment, and

Richard A. Stoloff argued that the rule should not apply when the contribution is to a national political campaign.

The Commission addressed both dissents, noting that the Court of Appeals has upheld the constitutionality of the contributions rule, and that there is no exception in the rules for national campaigns.

Judge Sakowski has served as a Justice of the Elma Town Court since 1980. His current term expires on December 31, 2015.

The "window" period

The Rules Governing Judicial Conduct permit a publicly announced candidate for elected judicial office to purchase two tickets to a politically sponsored dinner or other political function only during his or her “window period,” defined as a period of nine months before the selection of candidates to six months after the primary, convention, caucus or general election.

The full opinions are linked here and here. (Mike Frisch)

September 8, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0)

The Book Thief

An elected Vermont judge was reprimanded as a result of his lengthy course of conduct involving small thefts from three stores.

No greater sanction was imposed in light of his resignation from office.

Vermont Today reported on the judicial complaint

A former Washington County assistant judge who is accused of stealing items from three Montpelier businesses over several years says he has no explanation or excuse.

The state’s Judicial Conduct Board is investigating a formal complaint against Karl Barney Bloom, 71, and could sanction him. Bloom served as an assistant judge for 15 years before retiring in July.

Bloom acknowledged in a phone interview Monday that he knew what he was doing was wrong. He said there was no explanation he could easily give. “We’re all like the moon,” he said. “We have a side that no one sees.”

The complaint says Bloom took newspapers and soup from Uncommon Market without paying for them. After the owners of the market confronted Bloom, the complaint says, he paid the market $500 as compensation and agreed to donate $500 to Kellogg-Hubbard Library in Montpelier.

He also took books and magazines from Bear Pond Books without paying for them, according to the complaint. On Dec. 14, 2012, the complaint says, the bookstore owners confronted Bloom when he tried to walk out with a book in his coat pocket for which he hadn’t paid. A few days later, Bloom was given a no-trespass order saying he had to stay out of Bear Pond Books, according to the complaint.

The third business was Capitol Grounds, where the complaint says Bloom, “on multiple occasions,” would take coffee without paying for it over the past three years.

He is barred from future judicial office. (Mike Frisch)

September 8, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0)

Final Discipline Awaits Convicted Former Judge

The Ohio Supreme Court has suspended a former judge convicted of a felony offense.

Newsnet 5 Cleveland had this report

According to an affidavit released by Shaker Heights Municipal Court, Cuyahoga County Common Pleas Judge Lance Mason punched his wife repeatedly, choked her and bit her at around noon Saturday on Van Aken Boulevard near Glencairn Road in Shaker Heights.

Authorities said Mason, 46, of Cleveland, and his wife began fighting in their car and the fight turned physical as they drove on Glencairn Road.

Eventually, the altercation spilled outside of the vehicle. During a 9-1-1 call, Mason's wife told dispatchers that someone had stopped to help her after she made it out of the car. She added that Mason had driven away with the kids and that the witnesses were driving her to a hospital.

According to the affidavit, Mason's wife suffered a broken orbital bone, facial swelling and bite marks to her face.

The court will determine the appropriate final discipline at the conclusion of the disciplinary process. (Mike Frisch)

September 8, 2015 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (2)

Friday, September 4, 2015

Removed And Disbarred

The Mississippi Supreme Court removed a Chancery Court judge from office as a result of his conviction for obstruction of justice.

From the statement of agreed facts

The Formal Complaint in this matter contains various allegations regarding Respondent’s mismanagement of [a] conservatorship. Due to various irregularities occurring in Respondent’s handling of the conservatorship, the matter was investigated by the Federal Bureau of Investigation as well as the Commission. As a result of that investigation, a grand jury was convened and witnesses called to testify regarding the administration of the conservatorship. In association therewith, Respondent has entered a guilty plea related to a charge of attempting to corruptly influence a witness subpoenaed to appear before a Federal Grand Jury proceeding and attempting to impede the provision of documents by the witness to the Federal Grand Jury with the intent to influence the outcome of the proceeding in violation of Section 1512(c)(2), Title 18, United States Code. The Federal Court Judge has accepted the plea and will impose sentence on Respondent in January, 2015, thereby rendering a hearing on the merits in the Commission case unnecessary and superfluous. Based upon said plea, Respondent has resigned from office and agrees that the appropriate sanction in this cause should be removal from office.

He was also taxed with costs.

By separate order, he was permanently disbarred.

Hattiesburg American has the details. (Mike Frisch)

September 4, 2015 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, September 1, 2015

Former Magistrate Faces Attorney Discipline: Litigant Stabbed And Had Sex With Him

The excellent web page of the Ohio Supreme Court has a summary of a disciplinary matter scheduled tomorrow for oral argument

A former judge and magistrate could be suspended from practice for violating professional rules of conduct, but the length of the suspension is in contention.

Orlando Williams served as a judge and then a magistrate in the Akron Municipal Court between March 2009 and June 2012. Williams is accused of having a sexual relationship with a defendant who appeared before him in an eviction case. Additional misconduct charges brought by the Office of Disciplinary Counsel allege Williams falsified documents to buy a car and misappropriated settlement money from a wrongful death lawsuit.

While a three-member panel of the Board of Professional Conduct recommended Williams be suspended for two years, with one year stayed on condition he doesn’t commit further misconduct and maintains compliance with a treatment contract, the full board amended the sanction and is recommending the Ohio Supreme Court indefinitely suspend Williams from practicing law in Ohio. The board concluded that because of Williams’ egregious violations, a more severe sanction was appropriate.

Charges of Misconduct
While serving as a magistrate, Williams began a sexual relationship with a woman who appeared before him as a defendant in an eviction case. He didn’t recuse himself from the case until confronted by the court’s four judges after the woman was arrested for drunk driving and referred to Williams as her boyfriend. The Disciplinary Counsel charged his actions were in violation of the Ohio Code of Judicial Conduct rules 1.2 and 2.11(A) for failing to disqualify himself from the woman’s case and carrying on a relationship with her.

After he resigned his position with the court in 2012, Williams worked for a private law firm. Five days after he was fired, he and the woman went to a car dealership in Akron. Williams filled out a credit application and listed an old home address and falsely claimed to work at the law firm. With his knowledge, the woman made a fictitious pay stub that was provided to the dealership. Williams is accused of violating Ohio Rule of Professional Conduct 8.4(c) for the fraud.

In a separate incident, Williams is accused of violating that same rule of conduct, in addition to rules 8.4(d) and 1.3, for failing to make the required distributions for the minor children in a 2009 wrongful death lawsuit settlement. After the money sat in his Interest on Lawyers’ Trust Account for three years, Williams withdrew the money, repaid it, and withdrew it again. He never purchased the court-ordered annuity for the children and he failed to report his inaction to the court on several occasions.

The Board of Professional Conduct adopted the findings of fact and conclusions of law of the panel, but amended the sanction to an indefinite suspension because of Williams’ egregious actions, including his failure to make full restitution.

Answer from the Accused 
In an answer to the disciplinary recommendations, Williams’ attorney maintains his client has agreed to certain facts in the case, including taking responsibility for his misconduct. He doesn’t agree to the omission of facts about his mental state at the time of the misconduct and the indefinite suspension recommendation that’s before the Supreme Court.

The written objection includes testimony from Williams during his disciplinary hearing that he suffered through an abusive relationship with his defendant-turned-girlfriend, including being stabbed four different times by her. He claims her violent actions and threats contributed to his “misdeeds.”

Both Williams and the Office of Disciplinary Counsel contend the Board of Professional Conduct’s recommendation for an indefinite suspension of his law license is not justified in this case, and that similar cases have resulted in two-year suspensions.

- Stephanie Beougher

Video of oral argument also is available in Ohio. (Mike Frisch)

September 1, 2015 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Monday, August 24, 2015

Patient Judge Not Recused

The Tennessee Court of Appeals  agreed with a trial judge that a comment made in a medical malpractice matter did not demonstrate bias requiring her recusal.

The comment

I can tell [a deponent]  how awfully I was treated in the emergency room recently, but that’s a whole other subject.

The court here

Appellants argue that the trial judge‘s negative characterization of the treatment she received at Methodist University creates an appearance of bias towards Methodist Healthcare and its employees. The judge made the comment at issue on the record during a discussion pertaining to the deposition of Methodist Healthcare CEO Gary Shorb in an unrelated case. In arguing against the deposition, one of the attorneys indicated that Mr. Shorb was not in his office being deposed each day, to which the trial judge responded as follows: "Well, I‘m sorry he‘s not. I can tell him how awfully I was treated in the emergency room recently, but that‘s a whole other subject." As she subsequently explained in a discussion off the record, the judge‘s statement was made in reference to her experience in the emergency department at Methodist University. If required to consider the trial judge‘s statement standing alone, a reasonable person might infer bias against Methodist Healthcare and its employees; however, "[a]ny comments made by the trial court must be construed in the context of all the facts and circumstances to determine whether a reasonable person would construe those remarks as indicating partiality on the merits of the case." Alley, 882 S.W.2d at 822 (citations omitted). Construed in its appropriate context, the judge‘s comment is not sufficient to require recusal...

...we cannot conclude that a reasonable person, knowing all of the facts known to the judge, would have any reasonable basis for questioning the judge‘s ability to act impartially as thirteenth juror in either of the cases before us. It appears the trial judge‘s comment was little more than a lighthearted reference to the unpleasantness that often accompanies emergency room visits. Though perhaps ill-advised, if only because of the time and expense it has taken to resolve the motions for recusal, the comment does not indicate partiality on the merits of the case when construed in the context of all the facts and circumstances.

(Mike Frisch)

August 24, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0)

Saturday, August 22, 2015

Judge Who Lost Election Is Judge No More

The New Mexico Supreme Court rejected the claim of a judge who lost a retention election that she was entitled to stay in office.

Under Article VI, Section 33 of the New Mexico Constitution, a district judge elected to that position in a partisan election is thereafter “subject to retention or rejection in like manner at the general election every sixth year.” Section 33 does not specify when this six-year term begins, particularly when the elected judge succeeds a predecessor who has not completed his or her full term in office. In that case, does the successor judge’s election mark the beginning of a new six-year term, or does the successor judge assume the six-year term of the predecessor judge? The answer determines when the successor judge must stand for nonpartisan retention election. For the reasons that follow, we hold that under the New Mexico Constitution a judge elected in a partisan election is subject to retention in the sixth year of the predecessor judge’s term. Our holding is consistent with the intent and purpose of our New Mexico Constitution.

The State Attorney General sought a writ 

We appropriately granted the State’s petition for a writ of quo warranto. Judge Raphaelson was properly up for retention in the 2014 general election pursuant to Article VI, Sections 33, 35, and 36 of the New Mexico Constitution. Judge Raphaelson’s failure to earn 57 percent of the votes in favor of retention in the 2014 general election resulted in her loss of the seat. Any effort to remain in office beyond December 31, 2014 contravened the  Constitution, justifying our writ of quo warranto.

The Albuquerque Journal reported on the Attorney General's position.

Abovethelaw had reported on the judge's post-defeat efforts to hang on. (Mike Frisch)

August 22, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, August 20, 2015

Judge Who Stole Cocaine Evidence Suspended

A former Pennsylvania judge has been suspended from practice as a result of a criminal conviction.

Details from the Pittsburgh Post-Gazette

Former Washington County Common Pleas Judge Paul Pozonsky stood before the court Monday as a “broken man,” his voice catching as he described losing his job, his reputation and, soon, his wife to an addiction he fueled through stealing cocaine submitted as evidence in his court.

“I made terrible decisions,” he said. “It’s taken away the only job I ever loved.”

For those crimes, Mr. Pozonsky will spend 30 days in the Washington County Jail. Visiting Judge Daniel Howsare of Bedford County ordered him to serve up to 23½ months, but the 59-year-old is expected to be released on parole after one month.

Mr. Pozonsky was scheduled to surrender at 4 p.m. Monday. Defense attorney Robert Del Greco said he needed the afternoon to arrange for the care of his elderly parents, who he had been living with in Muse. After parole, he’ll spend two years on probation in Washington County and will be responsible for more than $15,000 in fees and other court costs.

In explaining his decision, Judge Howsare called the situation “very difficult” and said he didn’t intend to “add salt to the wound.” But he said some incarceration was required for the former judge who created the county’s drug court, knew counseling was available and “instead decided to use the evidence … to satisfy his drug use.”

“It’s a factor that’s difficult to overlook,” he said.

Mr. Pozonsky abruptly retired in June 2012, halfway through his second 10-year term and a month after he was stripped of handling criminal cases by the president judge. Investigators found that some evidence bags in his chambers had been tampered with, their seals broken, and some cocaine had been replaced with baking soda.

He pleaded guilty in March to three misdemeanors — theft by unlawful taking, obstructing administration of law and misapplication of entrusted property — and in exchange, prosecutors dropped three other charges and agreed not to seek incarceration as a penalty. Also that month, Mr. Del Greco said Mr. Pozonsky has been “clean and sober” going on four years.

On Monday, he called his client “the victim of a career-ending, self-inflicted wound.”

“To say that he has suffered mightily is an understatement,” Mr. Del Greco said. He said Mr. Pozonsky will probably be disbarred soon. He has lost his pension of $98,000 per year plus full medical coverage for life.

In asking for leniency, Mr. Del Greco noted the former judge’s 28 years of public service, his role in creating the county’s drug court and the more than 70 letters of support from former prosecutors, colleagues, family, defendants and others.

Jim Kohler, 64, and his daughter Kerri Kohler, 39, who went through Mr. Pozonsky’s drug court, addressed the court.

“He saved my life,” Ms. Kohler said.

Mr. Pozonsky said a “confluence of events” led to his drug use, including family, work and personal issues. He began abusing prescription medicine after a car accident and progressed to cocaine, he said.

He apologized to the court and the residents of Washington County.

“My conduct was inexcusable,” he said.

Deputy Attorney General Michael Ahwesh, lead prosecutor on the case, pointed out that Mr. Pozonsky began getting treatment May 14, 2011, but continued to ask police to turn over cocaine.

“He realized he had a problem and he didn’t do anything,” Mr. Ahwesh said. “The defendant turned the courtroom into his stash house and basically made law enforcement his private suppliers of cocaine.”

After handing down the sentence, the judge called for a recess to discuss where Mr. Pozonsky should serve the 30 days. Mr. Del Greco said he wanted him to stay in Washington County for the jail’s work-release program, and that it’s unlikely anyone the former judge sentenced would still be in the lockup unless the person is a repeat offender.

After the hearing, Barry and Andrea Aller of Burgettstown, whose late daughter Desire’e was in Mr. Pozonsky’s drug court, told reporters they had hoped for a harsher penalty.

“I just don’t think it’s fair that he could do that and sentence people when he himself could have been high sitting on the bench,” she said. “How can you be an addict only in the evening?”

Mr. Pozonsky told Judge Howsare he was never under the influence at work.

Final discipline will be imposed after disciplinary proceedings based on the conviction are concluded. (Mike Frisch)

August 20, 2015 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (1)

Tuesday, August 11, 2015

No Place For Humor

The Ohio Supreme Court found an attorney in contempt for failure to comply with an earlier court order.

The court ordered that the stayed two-year suspension revoked and imposed the actual suspension.

This report of the Board of Commissioners on Admissions and Grievances describes his background

Respondent was admitted to the practice of law in the state of Ohio on November 9, 1974. Respondent is a graduate of the University of Michigan Law School. Respondent is 64 years old. Respondent has been a domestic relations magistrate for 33 years, serving in Crawford and Morrow counties and currently in Delaware County.

He is a "highly motivated public servant"

Respondent manages a busy case docket, including highly contentious and emotional domestic litigation. Respondent estimates that counting divorce trials, post decree matters, civil protection orders, child support enforcement agency matters, and other miscellaneous matters, he conducts approximately 1,000 hearings per year. Respondent prides himself on quick turnaround of his written decisions. Respondent enjoys his work and would like to work one or two more years after he turns 65 this year.

But, as like all of us, no one is perfect

Certain of the character letters also mention other aspects of Respondent's character that are somewhat consistent with Respondent's behavior in the Davis/Spriggs and the Krawczyk matters. Specifically, some of the letters describe Respondent as quick-tempered.  Respondent is also described as having a quirky or unusual sense of humor that he sometimes uses to break the tension.

One matter that led to the misconduct

The Davis/Spriggs matter involved a former wife's motion to hold her former husband in contempt of court for distributing nude pictures over the internet of the former wife in violation of the divorce decree. The litigation lasted over two years resulting in numerous discovery disputes and a five-day trial on the merits. Respondent's misconduct consisted of several isolated incidents occurring at various times during this bitterly contested litigation...

On several occasions during status conferences and motion hearings, Respondent conducted himself in an unprofessional and undignified manner and treated the wife and her lawyer with extreme disrespect. During a status conference regarding the logistics of the wife's expert examining the husband's computers, Respondent mockingly imitated the voice of the wife's attorney over the telephone in her presence. After that hearing, Respondent walked into the hallway where the wife was seated and "slowly ogled" the wife "from head to toe in a demeaning and degrading fashion." Respondent later told the wife's attorney that she would need to provide Respondent with a CD containing intimate photos of Davis' then current girlfriend. At the hearing, Respondent explained that the photos of the girlfriend were relevant to the proceeding, but he acknowledged that in asking for them. "I probably said some wise thing." Stipulation 20, 23, 26; Hearing Tr. 29-36.

Respondent acknowledged that all of the above comments were inappropriate. Respondent admitted that he was "'being a wise ass, and not thinking before you talk." Respondent acknowledged that his looking at the wife in a manner that she perceived to be degrading was "stupid" on his part. Id. 21, 32.

 During a discovery motion hearing regarding the lawyers' having withheld requested discovery, Respondent lost his temper stating: "This is so goddamn simple. If you give the discovery and don't do all this bullshit, I don't have to sit here for hours and listen to this crap. So everybody's excused. Goddamn it. Comply with the discovery and shut up once in awhile. You make 17 hairline things, we'll do 8 of them but not these 9. Stupid, All Franklin County attorneys are stupid." Stipulation 29; Ex. 5.

While the wife's attorney was addressing Respondent in a pretrial conference regarding recently filed motions, Respondent allowed the husband's attorney to repeatedly throw paperclips at Respondent's head with one or more striking Respondent on the forehead. Respondent took no action to stop the lawyer from creating this disruption. Stipulation 31.

Later during the trial, and just before the wife was to take the stand for crossexamination, Respondent jokingly told the husband's attorney that Respondent would give the husband's attorney a dollar if he could make the wife cry during her cross-examination. At the same time, Respondent removed a dollar bill from his wallet and placed it on the bench.

(Mike Frisch)

August 11, 2015 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (1)

Monday, August 10, 2015

Common Pleas Judge Reinstated To Practice After Felony Conviction

The Ohio Supreme Court has reinstated an attorney suspended as a result of a felony conviction.

The Morning Journal reported on the charges

Lorain County Common Pleas Judge James Burge was indicted Sept. 24 by a grand jury from Ohio Attorney General Mike DeWine’s office.

Burge, 67, is facing three counts of falsification, three counts of tampering with records, three counts of soliciting improper compensation and three counts of having an unlawful interest in a public contract...

According to the indictment, on Jan. 24, 2012, Burge allegedly made a false statement or “knowingly swear or affirm the truth of a false statement previously made, when the statement was in writing on or in connection with a report or return that is required or authorized by law.”

The indictment states that Burge allegedly tampered with records Jan. 24, 2012, of a 2011 Ohio Financial Disclosure Statement “and the writing, data, computer software or record was kept by or belonged to a local, state or federal government entity.”

It further alleges that Burge tampered with a 2010 Ohio Financial Disclosure Statement and a 2012 disclosure statement.

He allegedly solicited improper compensation from Feb. 1, 2011, to June 7, 2011, while serving as a public official by knowingly soliciting or accepting contributions, according to the indictment. 

The indictment also charges Burge with having an unlawful interest in a public contract. The indictment stated that Burge did “knowingly authorize or employ the authority or influence of his office to secure authorization of any public contract in which he, a member of his family, or any of his business associates had an interest.”

Six of the charges are felonies.

The Chronicle- Telegram reported on his conviction by jury and efforts to regain his law license.

The court's order did not explain its reasoning for the reinstatement.

See comment below: conviction on which suspension was based has been vacated. (Mike Frisch)

August 10, 2015 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (1)

Thursday, July 23, 2015

Understandable Impulse Leads To Censure Of Town Court Justice

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

created the appearance of impropriety and lent the prestige of his judicial office to advance his son's private interests by requesting leniency for his son from two law enforcement officers in two separate conversations concerning impending charges of Overdriving, Torturing and Injuring Animals, a misdemeanor, and Violating Prohibited Park Hours, a violation under the local law.

The justice was contacted by police concerning his 19 year old son

Officer McCully led respondent to the women's restroom where he had earlier found Joseph Sullivan with two small kittens. One of the kittens had been hog-tied with tape, and there was a lighter nearby. Officer McCully informed respondent that his son would be charged at a later time and would be allowed to go home with respondent that night. Respondent was given custody of the kittens to return them to the location where his son had obtained them. No charges were issued against respondent's son that night.

Early the next morning, Saturday, July 20, 2013, respondent telephoned Whitestown Chief of Police Donald Wolanin on the chief's cell phone to discuss the incident in the park the night before. Respondent told the chief that he hoped that the police would not "go piling on" charges or "overcharge" his son, or words to that effect. 

On Monday

at the conclusion of respondent's court session, Officer McCully entered the Whitestown Town Court and asked to speak with respondent. The two went outside the building, where Officer McCully said that he needed respondent's son to come to the police station where the officer would issue an appearance ticket for animal cruelty and being in the park after hours. Respondent stated, "Do you really have to arrest him?" or words to that effect. Respondent told Officer McCully that if his son was arrested it would ruin his chances of getting a job with the Oneida County sheriff.

The commission

By acting as his son's advocate in two conversations with law enforcement officials while seeking leniency with respect to impending charges, respondent lent the prestige of his judicial office to advance his son's private interests...

While it is understandable that respondent was concerned for his son and hoped for leniency in the officers' assessment of potential charges, his '"paternal instincts' do not justify a departure from the standards expected of the judiciary"

The justice is not an attorney. (Mike Frisch)

July 23, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, July 22, 2015

Tears Of A Judge

SunEthics has a recent case of interest involving judicial disqualification from the Florida Fourth District Court of Appeal. 

There had been bad blood between the judge and petitioner's counsel such that, as a matter of tactics, another member of counsel's firm handled a second trial,

The alleged hostility arose in an unrelated Engle case wherein the judge issued a fifteen-page order granting a motion for new trial based largely on counsel’s courtroom behavior.

Within that order the judge detailed the attorney’s conduct characterizing it as misleading and a fraud on the court. The hostility between the two carried over into proceedings concerning the judge’s nomination for appointment to the federal bench. The judge furnished the nominating committee a copy of the order as a writing sample. Thereafter, the attorney sent the committee a letter challenging the facts contained in the order and questioning the judge’s suitability for appointment to the federal bench. Following the judge’s unsuccessful nomination, petitioner and other Engle plaintiffs represented by the attorney and his firm moved to disqualify the judge. The judge denied the motion, and we denied the prior prohibition petition.

But an issue arose when counsel attended closing arguments

The events surrounding this second motion arose after the attorney was present in the courtroom to observe a portion of a firm member’s closing arguments and after the jury returned its verdict. According to petitioner, she and her trial counsel approached the bench to thank the judge. Petitioner alleges that as the two were walking away from the bench, the judge commented that she had seen the attorney in the courtroom and that she would “never forgive him for what he did to me.” Petitioner alleged that it appeared to her that the judge was “highly emotional and on the verge of tears as she said this.”

Petitioner alleged that while she was previously aware of the issues between the judge and her attorney, she did not appreciate “the depth of the hostility or how deeply hurt the judge was by [counsel’s] active opposition to her quest for a federal judgeship.” Petitioner’s trial attorney, who was present at the bench with petitioner, furnished an affidavit echoing petitioner’s representation of the judge’s comments and adding that the judge said she “will never forget what he did. I will never forgive him and I took it personally. It was very hurtful and it made me cry.” Counsel added that the judge told him that he could communicate that sentiment to the attorney...

Accepting the allegations within the motion and affidavits as true, we conclude that the judge’s alleged inability to restrain either her utterances or her emotions in front of the petitioner would, if true, show that the experience profoundly affected her and made her future impartiality reasonably suspect. The source of this prejudice is personal and unrelated to petitioner’s case and trial counsel’s conduct therein. See, e.g., Lamendola v. Grossman, 439 So. 2d 960 (Fla. 3d DCA 1983). Though we previously concluded that any hostility arising from the events of the judicial nominating process did not warrant disqualification, the judge allegedly opened the door and displayed the depth of such hostility by failing to remain silent despite the passage of time.

Based on the foregoing, we conclude that a reasonably prudent person would be in fear of not receiving fair and impartial judicial review of the pending matters.

The case involves litigation against tobacco companies.

Palm Beach Coast had this coverage. Daily Business Review also had a report. (Mike Frisch)

July 22, 2015 in Judicial Ethics and the Courts, Law & Business | Permalink | Comments (0)

Monday, July 20, 2015

"That's The Culture:" Ticket Fixing In New Jersey

A judge who fixed tickets for a fellow judge and his family was suspended for a year (retroactive) by the New Jersey Supreme Court.

Respondent was a municipal court judge in Jersey City until 2007. Sison was also a municipal court judge at the time.

On October 24, 2007, the New Jersey Office of the Attorney General (AG) notified the OAE of charges filed against respondent for "ticket-fixing" and later provided the OAE with a copy of the complaint, charging her with the second-degree crime of Official Misconduct, N.J.S.A. 2C:30-2(a).

On August 28, 2009, respondent was admitted into the PreTrial Intervention (PTI) program, which she successfully completed.

Count one of the complaint alleged that Sison presented respondent with three motor vehicle tickets "for adjudication." The tickets had been issued to him and to members of his family. Respondent did not adjudicate the Instead, she imposed judgment tickets on the record. without the defendants’ appearances or pleas and without considering their guilt or innocence. She either found the defendants guilty or dismissed their matters.

For Sison’s ticket for parking during street cleaning, respondent assessed $20 in court costs and waived the $42 fine.She conceded, during the AG’s investigation, that "there probably was no legitimate reason to waive the fine; that’s the culture."

A second ticket charged Sison or his wife with the same offense, for which respondent assessed $I0 in court costs and waived the $42 fine.

A third ticket, issued to Karl Sison, charged him with a moving violation for failure to observe a traffic control device, a two-point violation. Respondent amended the ticket to delaying traffic, a no-point violation, and imposed a $25 fine and $25 court costs. She advised Sison of the amended charge and fines.

Although Karl Sison had been standing in the hallway, while respondent adjudicated his ticket, she did not elicit a factual basis for the amended charge and did not give the municipal prosecutor or charging officer an opportunity to be heard about the charges. Respondent knew that her actions were not authorize.

The judge questioned the proceedings

By letter to Sweeney, dated October i, 2014, respondent, among other things, accused Disciplinary Review Board Member Gallipoli of "Javert-like madness," in ensuring her prosecution, and questioned why charges against Sison had not been pursued.

The report of the Disciplinary Review Board and the court order may be found here. (Mike Frisch)

July 20, 2015 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Friday, July 17, 2015

A Model Judge: Not

A judicial ethics opinion from the New York Advisory Committee on Judicial Ethics

This responds to your inquiry (15-91) asking if you may act as a clothing model at a not-for-profit fund-raising luncheon/fashion show. The raffles and a silent auction.

 A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge may assist an organization in planning fund-raising, but must not personally participate in solicitating [sic] funds or in other fund-raising activities (see 22 NYCRR 100.4[C][3][b][i]).

Accordingly, while you may help organize and attend this event, and even though your involvement will not be announced in advance, the fact remains that the fundraising event itself is billed as a fashion show and the fundraising will necessarily occur close in time to - and/or simultaneously with - the clothes modeling activities. Therefore, your participation as a clothing model is prohibited.

(Mike Frisch)

July 17, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, July 14, 2015

Married Without Employment

A new opinion from the Florida Judicial Ethics Advisory Committee.

        ISSUE

Whether Canon 3C(4) is violated if a judge continues to employ the judge’s judicial assistant, after the assistant marries the judge’s child.

ANSWER: Yes, even if the proposed action may observe technical compliance with Florida’s nepotism statute.

The question posed by the inquiring judge calls on this Committee to examine not only the Code of Judicial Conduct, but also section 112.3135, Florida Statutes (2015). In light of Canon 2A of the Code of Judicial Conduct, which mandates that judges “shall respect and comply with the law,” the committee believes the judge’s inquiry should be answered although it does pose a mixed question of ethics and law, because under these particular facts those questions are inextricably linked.

A majority of this Committee (ten members) concludes that retaining the judicial assistant post-marriage would constitute a violation of Florida’s nepotism statute and therefore the Code of Judicial Conduct as well.  Moreover, even if the minority (two members) is correct in its legal analysis (which is that the law would not be violated), the majority believes the proposed action would still run afoul of the Code of Judicial Conduct.

The majority view

the facts of the present case are not limited solely to the employee’s future advancement. Instead, the focus should be on the word “employ” as used in the statute. There should be little question that a judicial assistant is selected by the judge and not assigned by some higher authority such as a Chief Judge or court administrator. The judicial assistant thereafter serves at the judge’s pleasure.  It should be emphasized that in the present case the inquiring judge did not actually hire a relative. Instead, the judge proposes to retain the employee once the familial relationship status is conferred by the upcoming marriage. The anti-nepotism statute does not actually mention retention - that is, it does not address the situation where an existing employee’s non-familial status suddenly changes. The minority concludes that this is a distinction with a difference. The majority cannot agree and would interpret the term “employ” as denoting, at least in this case, a continuing process...

The majority’s conclusion stems from the very nature of familial relationships and the unfortunate fact that they do not always remain intact. The legal definition of “relative” is broad and some relatives are more distant than others, but the statute itself attempts no such gradation. Would the minority reach the same result if the judge, rather than a relative, were the one marrying the judicial assistant? Even in the present case, suppose marital difficulties were to arise in the future, to the point litigation ensued. Even though, as would likely happen, the case could be transferred to a different circuit, the perception could arise that the judge has taken the side of the blood relation and has retaliated against the employee as a result. Such actions are the direct opposite of advancement or promotion, a contingency the anti-nepotism statute does not address, but one that presents ethical ramifications no less serious in nature. Personality conflicts, and the troubles that often follow them, will always be with us, but in this instance are easily avoidable by accepting that the Code of Judicial Conduct may impose broader restrictions on conduct than has the Florida legislature.

(Mike Frisch)

July 14, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0)

Saturday, July 11, 2015

Defeated Judicial Candidate Reproved: Accused Judge Not Arnold's Bagman

In a published decision,  the California State Bar Court Review Department imposed a public reproval and ethics school for an attorney who made false statements in his judicial campaign against a sitting judge.

we agree with the hearing judge that Parish’s statement accusing his opponent of involvement in bribery and corporate fraud was a factual misrepresentation made with reckless disregard for the truth...

We disagree with the hearing judge, however, that this matter should be resolved with an order of admonition, which is not discipline. Instead, we find Parish’s reckless statement implicating a judge with bribery requires public discipline to maintain the integrity of the legal profession and to preserve public confidence in the impartiality of the judiciary. 

The story

As a Yolo County deputy district attorney and a political neophyte, Parish mounted a campaign to unseat Judge Daniel Maguire in Yolo County Superior Court during the June 2012 election cycle. Parish spent the majority of his campaign going door-to-door and appearing at events to meet people and ask for their votes and their money. For campaign strategy and messaging, Parish relied heavily on his trusted advisor, Kirby Wells, who had extensive campaign experience. Parish also enlisted the aid of two paid political consultants — first Frank Ford and then Aaron Park. When Ford left the campaign in March 2012, Parish began working with Park, who was highly recommended by Wells. Park and Wells agreed that Ford had not been “aggressive” enough in the campaign.

Aggressive meant a campaign to tie his opponent to Governor Schwarzenegger, who was unpopular in Yolo County. The judge was referred to in a mailer as  "Arnold's bagman"

Dan Maguire was quoted defending the Protocol Foundation — used to hide $1.7 million in Arnold’s Travel Expenses. 

As part of Arnold’s inner circle, Dan Maguire was part of Arnold’s legal team that made decisions including commuting the sentence of convicted murderer Esteban Nunez. Fabian Nunez (Estaban’s [sic] father) is the former Speaker of the Assembly and current business partner of Arnold.

Dan Maguire was involved in a sordid case of corporate fraud that involved payment of bribes in Russia.

Dan Maguire received a political appointment (never elected) and took the bench only three weeks before Arnold’s last-day Commutation of Esteban Nunez’ sentence!

California suffered through 7 years of Arnold — you can stop it in Yolo County!

In the bar proceeding

Parish concedes the statement implicating Judge Maguire in bribery and corporate fraud was “actually false.”

He sent out two sets of mailers - one for the  Democrats; another for the Republicans.

The fallout

The mailer was sent on May 15, 2012. It was controversial, and the fallout was immediate. Judge Maguire asked his colleague, another Yolo County Superior Court judge, to prepare a robocall for voters condemning the mailer, which he did. In addition, local newspapers printed several articles, portraying the mailer in a negative light. Within days of the mailer’s delivery, Parish’s key followers withdrew their support, including the Yolo County sheriff and the district attorney, the Winters Police Officers Association, and the Yolo County Republican Party. Parish quickly and formally acknowledged the inaccuracy of the statement about Judge Maguire’s involvement in bribery and corporate fraud. He said he regretted including it in the mailer. Parish fired Park and stopped actively fundraising and campaigning. The election took place on June 5; Parish was resoundingly defeated, receiving only 23% of the vote.

The court rejected procedural challenges to imposition of discipline. (Mike Frisch)

July 11, 2015 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Monday, June 29, 2015

Noteworthy

The Georgia Supreme Court granted a new trial to a plaintiff who lost a medical malpractice case before a jury.

The trial judge had communicated with jurors in response to a note without advising the parties. The note was not preserved .

The plaintiff was contacted by two jurors who expressed concern about the deliberations several weeks later

the unique circumstances of this case, which include the untimely and serendipitous disclosure of the communication to Plaintiffs or their counsel; Plaintiffs’ inability to make the actual note or response a part of the record; the differing recollections about the nature and timing of the communication; the failure to resolve the perceived conflicts; and the inability to make a determination that a verdict for Defendants was demanded, regardless of any effect of the communication on the jury, support Plaintiffs’ entitlement to a new trial.

The court also reversed the Court of Appeals and concluded that the defendant had failed to preserve evidence. (Mike Frisch)

June 29, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, June 17, 2015

Threats Lead To Recusal Of All County Judges

The New Jersey Supreme Court remanded a matter in which the defendant's motion to recuse the entire Bergen County judiciary from presiding over a criminal matter.

In this appeal, the Court considers defendant’s motion to recuse the Bergen County judiciary from presiding over his criminal indictments: The State asserts that defendant threatened to kill or harm two judges in the Bergen Vicinage, and, on that basis, defendant claimed that reasonable questions could be raised about the appearance of impartiality if a Bergen County judge presided over the indictments.

Two indictments are pending against defendant Aakash Dalal. The first charges defendant with a series of offenses directed against four synagogues and a Jewish community center. Many of the charges first appeared in six criminal complaints filed in February and March 2012. The presiding judge of the criminal division at the time initially set bail at $2.5 million. The following month, another judge denied defendant’s request to reduce his bail.

While defendant was in custody, an informant reported that defendant allegedly made threats against public officials and buildings. Law enforcement obtained a search warrant for defendant’s jail cell, where officials found handwritten documents, including a chart of “ENEMIES” that listed the criminal presiding judge as a “high profile” enemy and the assistant prosecutor on defendant’s case as a “tactical” enemy. The words “DEAD COPS, DEAD COPS” appear on another page, which also features a chart of “ENEMIES,” naming the presiding judge and the judge who ruled on defendant’s bail at the top of the diagram. The assistant prosecutor and others are listed as well. As a result, defendant was charged with conspiracy to murder the assistant prosecutor, conspiracy to possess a firearm, and terroristic threats. On August 7, 2013, a Bergen County grand jury indicted defendant on those charges.

Defendant moved to dismiss both indictments and sought to recuse the presiding judge. After the State observed that the evidence provided “a significant reason” for the court to recuse itself, the presiding judge transferred the proceedings to a third judge (the “trial court”). The trial court subsequently denied defendant’s motions to recuse the Bergen County Prosecutor’s Office and for a change of venue based on pretrial publicity.

Holding

Not all threats or efforts to intimidate a judge will require recusal. However, given the serious nature of the threat, the absence of any proof of manipulation, the potential introduction of the evidence in one of the trials, and the relationships among judges within the Bergen Vicinage, a reasonable, fully informed observer could have doubts about a Bergen County judge’s impartiality. In light of recent developments, the matter is remanded to the Bergen County assignment judge for further proceedings consistent with this opinion.

The remand requires the assignment judge to either bring in an outside judge or transfer the case to another vicinage. (Mike Frisch)

June 17, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, June 4, 2015

Mississippi Keeps Paying Suspended Judge

The Mississippi Supreme Court denied a motion to reconsider its prior order that had suspended a judge with pay.

Gawker reported on allegations against the judge

This week, a Mississippi grand jury indicted Justice Court Judge Bill Weisenberger for felony assault on a vulnerable adult after he allegedly struck a mentally disabled black man and yelled, "Run, nigger, run."

According to WAPT, multiple witnesses report seeing the judge attack 20-year-old Eric Rivers while screaming racial slurs at a flea market in Canton, Mississippi last May. Weisenberger claims Rivers made "negative comments to his mother."

Since then, the judge has faced additional accusations of misconduct. From The Clarion-Ledger:

Weisenberger also had a lawsuit filed against both him and the county in November. The attorney for Charles Plumpp said Weisenberger arrested and jailed her client, who is African American, on the nonexistence charge of "roaming livestock."

While the judge voluntarily stepped down from his position last June, the Ledger reports that Weisenberger is currently seeking re-election.

The Commission on Judicial Performance had sought suspension without pay. (Mike Frisch)

June 4, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0)

Social Media Post Gets Judge Suspended

The Florida Supreme Court has ordered a 30-day suspension without pay of a judge

The violation of the [j]udicial [c]anons in this matter arises from Judge Krause’s single incident of participating in her husband’s judicial campaign. Judge Krause admits that, while her husband was a judicial candidate, she one time used social media to seek the assistance of her friends to help her husband correct perceived misstatements of his judicial opponent.

Judge Krause accepted full responsibility for the conduct, admitted that it should not have occurred, and apologized. She explained that her social media posting followed multiple private but ignored attempts to correct what she and her husband perceived as misstatements about her previous JQC matter. Judge Krause told the Panel that those attempts included seeking counsel from her chief judge, twice sending the same letter to the candidate asking her to refrain from misrepresenting the record (and never receiving acknowledgement or a response,) and enlisting the help of an emissary to speak with her husband’s opponent. All of these attempts proved fruitless.

Judge Krause further explained that she intended her posting, which was a frustrated last effort to correct the record, to be a private message to her friends. Even still, she removed the message within hours of its posting after realizing it could have a reach beyond her circle of friends. Only through the actions of those supporting her husband’s opponent was the posting further disseminated.

The court approved a stipulation of discipline. (Mike Frisch)

June 4, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0)