Friday, February 3, 2023

I Read The Sun-News Today Oh Boy

The New Mexico Supreme Court has publicly censured a judge for failure to recuse herself after a newspaper article had called her conduct into question.

The judge had appointed a parenting coordinator in a child custody case.

Three years later, the father retained new counsel who filed two motions. One sought recusal; the other sought removal of the monitor and revocation of his quasi-judicial immunity.

 One week after Father’s counsel filed these motions and before a hearing was held, the Las Cruces Sun-News published an article reporting many of the allegations contained in the two motions—that Dr. Smith was not a qualified parenting coordinator and that Judge Rosner recommended and issued an order appointing Dr. Smith despite his purported lack of qualifications. The article criticized the Third Judicial District’s parenting program, along with Judge Rosner and her involvement in that program and her subsequent order appointing Dr. Smith.

The judge read the article and felt "personally attacked" but did not recuse herself

Following the hearing on the two motions, Judge Rosner issued an Order Denying Respondent’s (Father’s) Motion to Recuse for Cause, and Order Denying Respondent’s (Father’s) Motion to Remove Parenting Coordinator and Revoke Parenting Coordinator’s Quasi-Judicial Immunity. In paragraph 17 of the order, Judge Rosner stated:

Rather than bring to [the c]ourt her claims of alleged misconduct by Harold Smith and this [c]ourt, [Father’s counsel] took her motions to the Las Cruces Sun News, without input from anyone other than herself. At the hearing, on her two motions . . . her client, [Father], testified under oath, that he had never had any contact nor had he made any statement to any reporter of the Las Cruces Sun News. The article, which appeared on the front page of the Las Cruces Sun News on July 21, 2020, sought to damage Harold Smith and this [c]ourt by implying an inappropriate relationship between Harold Smith and the undersigned judge, and bias by this [c]ourt and Harold Smith against [Father]. Noteworthy, is the failure of [Father’s counsel] to attack Dr. Caplan’s report which is the most damaging report against her client . . . . At the request of [Father’s counsel], Dr. Caplan’s report has been sealed.

Three days later, the judge granted a renewed recusal motion.

The judge admitted violations of judicial canons

Based on these admitted violations, Judge Rosner agreed to (1) enroll in and successfully complete, at her own expense, Ethics and Judging: Reaching Higher Ground, a National Judicial College Course and (2) receive a public censure to be published in the State Bar of New Mexico Bar Bulletin.

The court

While we commend Judge Rosner for recusing when she realized she could not be impartial, her use of the order denying Father’s motions, a tool used to carry out her official judicial duties under Article VI, Section 1 of the New Mexico Constitution, to respond to criticism was inappropriate. It was also inappropriate to reference the conclusion of the sealed doctor’s report, not only because it was sealed, but also because it had no bearing on the disposition of Father’s motions. While judges may respond to public or personal criticism, they may not do so in carrying out their official judicial duties. Rule 21-300 NMRA (“A judge shall conduct the judge’s personal and extrajudicial activities to minimize the risk of conflict with the obligations of judicial office.”). Having misused the order denying Father’s motions to respond to public criticism, we conclude that Judge Rosner violated Rule 21-204(A)-(B) and Rule 21-201(A), (E).

We recognize the challenges faced by district court judges, often presiding over emotionally charged cases involving litigants and lawyers who might challenge their authority, insult their integrity, impugn their good names, and even attempt to bait them into losing control. In those instances, district court judges, no matter how egregious the behavior by counsel or clients, must remain above the fray in order to carry out their official duties. Judges are equipped with tools to address inappropriate behavior on the part of the parties and counsel, in the form of sanctions and contempt powers, which should be used as needed. Judges must always remain cognizant that an essential function of their role in the judiciary is to be a neutral arbiter even in the throes of highly adversarial proceedings. By adhering to these responsibilities, the judge may effectively avoid any appearances of impropriety, as well as actual instances of impropriety.

While Judge Rosner’s admitted conduct violates several of the Rules of Judicial Conduct, this Court looks at various factors when deciding to impose judicial discipline including “the nature of the misconduct and patterns of behavior[,] . . . the seriousness of the transgression, the facts and circumstances that existed at the time of the transgression, the extent of any pattern of improper activity, whether there have been previous violations, and the effect of the improper activity upon the judicial system or others.” Schwartz2011-NMSC-019, ¶ 25 (internal quotation marks and citation omitted).

Censure was deemed appropriate. (Mike Frisch)

Judicial Ethics and the Courts | Permalink


That was outstanding of this blog and a state supreme court to stand up, albeit obliquely, for Americans’ “freedom of speech” and “press” secured by the First Amendment. But a sentence in the censure seems fraught with danger. “Judges are equipped with tools to address inappropriate behavior on the part of the parties and counsel, in the form of sanctions and contempt powers, which should be used as needed.” To present such a suggestion to judges who may be inclined to repress criticism is dangerous. I expect such suggestion will be (mis)taken as encouragement to sanction critics or hold them in contempt.

To the end of time, it seems, judges will need to be reminded that they “may not prohibit” any “modes of expression and association protected by the First and Fourteenth Amendments” by merely invoking the mere general “power to regulate the legal profession.” N.A.A.C.P. v. Button, 371 U.S. 415, 428-29 (1963). “[I]t is no answer to the constitutional claims asserted” by lawyers exercising First Amendment rights or freedoms “that the purpose of” any “regulations was merely to insure high professional standards.” Id. at 438-39. Courts “may not, under the guise of prohibiting professional misconduct, ignore constitutional rights” of lawyers or litigants. Id. at 439.

Posted by: Jack Jordan | Feb 3, 2023 2:05:54 PM

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