Thursday, February 14, 2013
In a case that involved the dismissal of five tickets alleging oyster-harvesting violations, the Mississippi Supreme Court has publicly reprimanded a county justice for what the court characterized as ticket fixing, conduct involving moral turpitude.
The defendant and his brother-in-law (who had played sports with the justice) visited the justice at home unannounced after the tickets were issued. The testimony of the three participants as to what was said was found to be incredible. The visit was never disclosed to the prosecutor.
The cases were dismissed by the justice, allegedly because the had officers failed to appear. In fact, they were present in court.
Mississippi Business Journal had this story on the recommendation for suspension by the Commission on Judicial Conduct. (Mike Frisch)
Justice Ann Walsh Bradley has recused herself from the judicial misconduct complaint brought against her colleague Justice David T. Prosser, Jr.
Justice Bradley noted that the recusal motions involved
procedural maneuvers, designed to foreclose any opportunity for a public hearing, have deprived this court of a quorum and may deprive the people of this state a full opportunity to learn what happened when four justices simultaneously appeared at my office on the everning of June 13, 2011, demanding that an after-hours press release be immediately issued.
Further: "This is and remains for me an issue of workplace safety."
Justice Bradley describes the encounter and accuses other justices of "spinning the facts" in the media. She states that the incident was not isolated but part of a history that "escalated from tantrums and rages, to threats, and now to physical contact."
She details her concerns for and efforts to protect her personal safety and states that she and the Chief Justice still lock their private offices out of safety concerns.
Justice Bradley calls upon the court to reform judicial discipline processes both generally and in this matter. (Mike Frisch)
Wednesday, February 13, 2013
A recent opinion from the Florida Judicial Ethics Advisory Committee:ISSUES
May a judge assigned to a dependency division permit groups or persons to donate items for children to play with while the children are in court?
ANSWER: Yes, as long as neither the judge nor the judge’s court personnel solicits the donations.
We opine that a judge assigned to a dependency division may permit groups or persons to donate items for children to play with while the children are in court. Allowing such donations likely would improve the administration of justice by aiding the judge’s ability to control the courtroom. See Fla. Code Jud. Conduct Canon 4B Commentary (“As a judicial officer and person specially learned in the law, a judge is in a unique position to contribute to the improvement of the law, the legal system, and the administration of justice, including, but not limited to . . . the improvement of justice in the areas of . . . juvenile dependency.”)
However, we opine that neither the judge nor the judge’s court personnel may solicit the donations. Code of Judicial Conduct Canon 4A states, in pertinent part, that a judge shall conduct all quasi-judicial activities so that they do not:
(1) cast reasonable doubt on the judge’s capacity to act impartially;
(2) undermine the judge’s independence, integrity or impartiality;
. . .
(6) appear to a reasonable person to be coercive.
Soliciting donations from groups or persons who appear before the judge may convey the impression that the judge will favor those who donate. Soliciting donations from groups or persons, regardless of whether those groups or persons appear before the judge, also may appear to be coercive to those who are not inclined to donate but who fear the judge’s disfavor if they do not donate.
Monday, February 11, 2013
The New York State Commission on Judicial Conduct has released its December 13 opinion censuring a judge who facilitated the criminal conduct of an attorney who he had appointed to administer numerous estates.
There are impassioned dissents that convincingly argue that removal from office is the only appropriate sanction.
From Member Emery:
In asserting that mitigation supports censure rather than removal, the best the majority can muster is the very essense of respondent's misconduct - that "respondent's judgment was clouded by his long professional relationship with an attorney who had served as counsel for several decades." Why the majority has lost its bearings in this case is a total mystery to me. Perhaps it is unduly influenced by the impending end od respondent's term. Id so, say so. Perhaps the dismissal of several other charges based on the Referee's findings influenced my colleagues. Perhaps respondent's engaging personality at our hearing clouded clear judgment. Or perhaps excellent lawyering on his behalf led the majority astray. I am perplexed and disappointed in the lack of accountability this case will convey to others. (citations to record omitted)
What I do know is that this is one of the most egregious cases that has ever been litigated before this Commission during the nine years that I have served. To allow respondent to escape removal on these undisputed facts out of deference or undue leniency toeards a retiring judge degrades our function to a degree I have not yet witnessed. Respondent's favoritism towards [attorney] Lippman should not be compounded by our favoritism towards him.
Links to the records of the proceedings may be found here. (Mike Frisch)
Friday, February 8, 2013
The ranch was "reputed, at one time, to be one of the largest ranches" in the state. It was owned by a childless couple named Hollis "Curley" Haisch and his wife Rose. The lawsuit involved allegations relating to the creation of a trust and, when the couple died, the estate.
The suit alleged that the defendant, the financial advisor to the couple, had breached fiduciary duties as a real estate broker and financial advisor. The jury found for the estate.
The court found that admissible evidence of an offer to buy the ranch was improperly excluded. When a prospective buyer offered to pay the $4.8 million asking price, the defendant fiduciary responded
Oh, God, you don't want to do that. I can get it for you cheaper than that.
The court rejected the contention that an ex parte meeting with plaintiffs' counsel, as well as allegations of bias, required the disqualification of the trial judge. (Mike Frisch)
Thursday, February 7, 2013
A recent opinion from the Florida Judicial Ethics Advisory Committee concludes that a judge need not be recused from matters involving a law firm with which he had explored representation:
Here, the inquiring judge consulted an attorney from a very large law firm about a possible claim. The claim was investigated but no lawsuit was ever filed and nothing came of the consultation. That was a year ago. No social relationship has developed between the inquiring judge and the attorney whom the judge consulted or the attorney’s firm. The Committee unanimously opines that the inquiring judge need not recuse automatically from any cases in which the attorney or that firm files an appearance.
The opinion was not unanimous:
Nine members of the Committee opine that the need to disclose the inquiring judge’s consultation with the attorney/law firm, in cases where either the attorney or the law firm appears before the judge, must be decided on a case-by-case basis based on the factors stated above. Three members of the Committee opine that the judge should be required to disclose the consultation for a reasonable period of time.
Monday, February 4, 2013
A recent judicial ethics opinion from South Carolina:
ON STANDARDS OF JUDICIAL
OPINION NO. 01 - 2013
RE: The propriety of a full-time magistrate being an active member of the FBI National Academy Associates, Inc.
A full-time magistrate is a retired law enforcement officer and graduate of the FBI National Academy. The magistrate has expressed interest in joining, as an active member, the FBI National Academy Associates, Inc. (“the Organization”). The Executive Board and general membership of the Organization are comprised entirely of active and retired law enforcement officers who are also graduates of the FBI Academy. The South Carolina Chapter of the Organization rotates monthly dinner meetings hosted by law enforcement agencies, including federal, state, and local agencies. While the Organization is a non-governmental agency, and not affiliated with the FBI, it does provide training and networking to members. The magistrate does not intend to take part in the training aspect, but would be focused on the social aspect only. The magistrate inquires into the propriety of joining this Organization.
A full-time magistrate should not become a member of the FBI National Academy Associates, Inc.
The Code of Judicial Conduct requires a judge to act in a manner “that promotes public confidence in the integrity and impartiality of the judiciary.” Canon 2A., Rule 501, SCACR. The commentary to Canon 2 explains that a “judge must avoid all impropriety and the appearance of impropriety.” Additionally, a judge should conduct his or her extra-curricular activities so that they do not “cast reasonable doubt on the judge’s capacity to act impartially as a judge.” Canon 4A(1).
Because the Organization’s members include active law enforcement officers, the magistrate’s membership in such a group (even if the magistrate’s participation is limited to the Organization’s social functions) could create the appearance of partiality and impropriety. Thus, membership in the Organization would violate the Canons.
A judge who interceded and dismissed a traffic ticket issued to the daughter of another judge has been found to engaged in ethical misconduct by an Illinois Hearing Board. The judge dismissed the case by falsely representing the position of the prosecutor.
The board recommends a six-month suspension.
The board summarized its conclusions:
...we conclude that a suspension is appropriate in this matter. To paraphrase what the Review Board said in the Hays case, quoted above, this is a sad episode in a long and respectable career, but it is elementary that a judge cannot knowingly dismiss a case by making false representations in a court order. We believe that a suspension of six months is adequate for the public to have confidence that dishonesty by a judge will not be tolerated, and to serve as a deterrent. We also believe that a suspension of less than six months would not serve to preserve public confidence in the courts or the legal profession, nor would it sufficiently impress upon others the seriousness of the misconduct in this case.
Illinois Homepage.net reported that the judge took early retirement because of the incident. (Mike Frisch)
The Louisiana Supreme Court has suspended a district court judge without pay for one year.
The court conceded that the case "involves circumstances which we admittedly find very hard to understand."
The circumstances had to do with a defendant that the judge had sentenced for cocaine distribution and an ongoing fued with a fellow judge.
The court found that the judge should have recused himself and had engaged in ex parte communications.
The court rejected the Judiciary Commission's recommendation for removal from office.
Justice Knoll dissented from the suspension sanction and was unimpressed with the "fueding judges" aspect of the case. Justice Knoll felt the the court should "pay no heed to petty squabbles based merely on speculation and extrapolation." (Mike Frisch)
Thursday, January 24, 2013
"One of the most valued judges in New Castle County [Delaware]" has been publicly censured by the Delaware Supreme Court.
The judge's misconduct involved "unneccessary delay" in several family court matters. The "persistent conduct" caused needless anxiety to litigants and harmed public confidence in the judiciary.
The judge did not dispute the delays but blamed her assistant.
The Board of Examining Officer appointed by the court called the sanction determination "troublesome" and found no helpful Delaware precedent.
The court followed the board's recommendation on sanction. (Mike Frisch)
Friday, December 28, 2012
A Buffalo City Court judge has been admonished by the New York Commission on Judicial Conduct.
The misconduct took place during a custodial arraignment of a 17 year old who was facing several charges.
At one point, the judge asked the defendant if he knew what "thuggery" meant and called him "Mr. Tough guy." The defendant responded with a series of truly ugly profanities and told the judge to "suck my dick."
The judge's response: "Why don't you pull it out for me" and then "[p]robably need a magnifying glass."
The governing principle as articulated by the commission: "Even in the face of provocative, disrespectful comments by a litigant, a judge is required to be an exemplar of decorum and dignity in the courtroom and not allow the proceedings to devolve into an undignified exchange of taunts, insults and obscenities." (Mike Frisch)
Thursday, December 20, 2012
Also from the Florida Judicial Ethics Advisory Committee:
1. Must a judge recuse from all cases involving a bank whose loan collection official is the judge’s close personal friend, whether or not the bank official appears in the case as a witness or bank representative, where the official is a member of a local social club to which the judge belonged until three years ago and the official frequently socializes with the judge and the judge’s spouse in each other’s homes, around town and while boating?
ANSWER: No, but the judge must recuse from any cases in which the judge’s friend appears as a party, witness or representative of the bank, or any case in which the judge’s impartiality might reasonably be questioned.
2. If the judge is not required to recuse from the bank’s cases, must the judge disclose the relationship to the parties in cases involving the bank?
3. Must a judge recuse from cases involving the attorney and law firm which represented the judge, the judge’s mother, and the judge’s brother in a personal injury case which settled without going to trial?
ANSWER: Yes, for a reasonable period of time.
4. Must the judge, upon no longer being required to recuse from cases involving the attorney and law firm, disclose that relationship to the parties in a case in which that attorney or law firm appears?
ANSWER: Yes, for a reasonable period of time.FACTS
The inquiring trial judge is a friend of the sole or primary loan collection officer at a local bank. The judge and the friend were both members of a local social group until the judge resigned from the group approximately three years ago. The judge and the friend frequently socialize in each other’s homes with their spouses and around town and while boating in excess of a dozen times each year. The bank appears in court on a variety of matters, including collections, foreclosures, and repossessions. The judge’s friend has never appeared before the judge as a witness or bank representative.
Historically, the judge has been recusing from the bank’s cases without requiring a hearing.1 Recently, the judge granted a motion to disqualify from a case in which the bank was a party, wherein the motion asserted essentially that the judge “had a past and ongoing social relationship” with the bank’s primary or sole collection officer. The judge asks if recusal is required or whether the judge may simply disclose the relationship in all future cases in which the Bank is a party and then rule on any motions to disqualify which may be filed.
In an unrelated inquiry, the judge states that, until recently, a local insurance defense attorney and the attorney’s law firm represented the inquiring judge, the judge’s mother, and the judge’s brother in a personal injury case against them. The case settled without going to trial. The judge has been recusing from all cases involving that firm without a hearing and plans to do so for two years after the firm concluded its representation of the judge and the judge’s family members. The judge asks whether recusal is required in such circumstances without a motion to disqualify or hearing. The judge further asks how long it is necessary to disclose the representation by the attorney and the firm in cases where the attorney or the firm appears.
The opinion is linked here. (Mike Frisch)
A recent opinion from the Florida Judicial Ethics Advisory Committee:
Whether the inquiring judge may attend a religious organization’s fundraising dinner, after the organization mailed invitations listing the inquiring judge as one of several “hosts” without notifying the judge before the mailing?
The inquiring judge and the judge’s spouse have attended a religious organization’s gala dinner over the years. The gala dinner serves a fundraising purpose for restoring, preserving and supporting the religious organization’s continued success. The inquiring judge’s spouse purchased an eight-person table for a considerable amount of money before the invitations went out. The invitations which were mailed by the gala planning committee, of which the inquiring judge is not a member, clearly were soliciting funds. Included with the invitation was a list of ten donors labeled as “hosts.” The inquiring judge was listed as one of the “hosts” with an abbreviated designation of title for Honorable (“Hon.”), along with the inquiring judge’s spouse’s name. Neither the inquiring judge nor the judge’s spouse authorized the committee to send the invitations including the inquiring judge’s name.
The inquiring judge quickly notified the committee of the mistake. The inquiring judge directed the committee to discontinue using the judge’s name in any further mailings for solicitation of funds.
The inquiring judge asks if the Code of Judicial Conduct would prohibit the judge’s attendance at the gala dinner given the invitation’s listing of the judge as one of the “hosts.
Tuesday, December 18, 2012
The United States Court of Appeals for the District of Columbia Circuit reversed and remanded the dismissal of a claim brought against the Administrative Office of the United States Court ("the central administrative support organization for the federal judiciary" ) by a rejected applicant for an attorney position.
The plaintiff is an attorney who resides in Kentucky. She applied online for a position as an Attorney-Advisor. Her application did not meet a job requirement that she live and work in the D.C. area. She received an automated rejection letter because of her Kentucky home.
She then sued AO, arguing that the geographic limitation was unconstitutional.
The district court granted dismissal for both lack of subject matter jurisdiction and failure to state a claim due to sovereign immunity.
The remand directs the district court to explain its conclusion that the plaintiff had failed to state a claim. (Mike Frisch)
Monday, December 17, 2012
The Maryland Court of Appeals has imposed the consent discipline of a five-day suspension without pay, to be served within 30 days, of a district court judge.
The Baltimore Sun reports:
A Baltimore County judge has agreed to a five-day unpaid suspension, admitting that he was wrong to summarily find 28 people in contempt for courtroom disruptions — including two dozen fined and threatened with jail time after their cellphones sounded in his courtroom.
District Judge Norman Stone III also will be on administrative probation for two years.
Maryland's top court signed off late Friday on the agreement between Stone, 54, and the Commission on Judicial Disabilities. His attorney acknowledged that Stone had exceeded his authority by sentencing people for contempt without allowing them to fully defend themselves in court. At least two people were jailed for slamming doors.
Friday, December 14, 2012
A New York State town court justice who is also an attorney agreed to be removed from office and never return to the bench. The matter was closed by the New York Commission on Judicial Conduct.
According to a stipulation in the case, the justice was charged with attempting to use her position when charged with a failure to report property damage and leaving the scene offenses after she had backed into another car and left the scene in Ticonderoga, New York.
She had previously been censured for similar conduct.
The justice also was charged with appearing in court both as a judge and representing a client while under the influence of alcohol. During a break in proceedings where she was counsel, she "smelled of alcohol, laid down on a bench in the courtroom and napped for approximately 45 minutes before a court officer roused her when proceedings were ready to resume." (Mike Frisch)
Friday, November 30, 2012
The Massachusetts Committee on Judicial Ethics has a recent opinion on the propriety of a judge in a small community hearing cases in which his former law firm appears.
The Code does not mandate your recusal from all cases in which attorneys from the Firm appear before you, unless you were involved in the matter in controversy while you were at the Firm. The two-part Lena test therefore applies, and you have already conducted the subjective component and concluded that you can handle the Firm's matters impartially. The objective test remains, and you are in a better position than the Committee to determine whether a disinterested observer would question your impartiality in handling Firm matters given your eleven-year absence from the Firm, the lack of relationship between you and the attorneys who have joined the Firm during that eleven-year period, and the disruption to the court, attorneys, and litigants that your frequent recusals cause.
Tuesday, November 20, 2012
In an opinion that noted "the ethical dilemmas judges in small communities face," the New Mexico Supreme Court has imposed a formal reprimand with conditions on a municipal court judge who had engaged in ex parte contacts with parties in a matter before him:
Respondent, based on his personal knowledge of the situation and the parties, initiated at least two ex parte communications and issued a temporary restraining order without authority or jurisdiction. Respondent has characterized his actions as an effort "to keep the peace" between two families in a small community. While Respondent may have had good intentions, his actions were knowing and intentional... We therefore take this opportunity to discuss the importance of abiding by the Code of Judicial Conduct no matter the size of the community in which a judge resides.
The conditions include probation for twelve months and a formal mentorship. (Mike Frisch)
Wednesday, November 14, 2012
From the web page of the New York Commission on Judicial Conduct:
Salina Town Court Justice Andrew N. Piraino (Onondaga County) brought a petition in State Supreme Court to stop the Commission from proceeding against him on formal disciplinary charges.
The judge and his lawyer filed the petition in the name of “John Doe.”
The matter was assigned to Supreme Court Justice John C. Cherundolo in Syracuse.
On February 7, 2011, Justice Cherundolo signed a temporary restraining order enjoining the Commission from any further proceedings and ordering that the matter be sealed pending a final determination.
After written submissions from the parties, Justice Cherundolo dismissed the petition in its entirety in a decision dated April 26, 2011, and an Order dated May 12, 2011. His Order directed that the matter be unsealed and that the caption be changed to reflect the real name of the petitioner: Andrew N. Piraino v. New York State Commission on Judicial Conduct.
Subsequently, Justice Cherundolo granted Judge Piraino's motion to reconsider and issued a second order that inter alia reversed his first ruling, reinstated the petition, restyled the caption as John Doe v New York State Commission on Judicial Conduct, reinstated the Temporary Restraining Order against the Commission, and ordered the Commission to produce volumes of information and material ostensibly going to the merits of the underlying disciplinary charges against Judge Piraino.
The Commission appealed to the Appellate Division, Fourth Department, which issued a Memorandum and Order dated November 9, 2012, in the Commission's favor, unanimously reversing Justice Cherundolo's second Order, reinstating his original order and dismissing Judge Piraino's Article 78 petition.
The order of the Appellate Division is linked here. (Mike Frisch)