Legal Profession Blog

Should Have Known Better

The Tennessee Board of Judicial Conduct has reprimanded a Knoxville municipal court judge.

The judge held at campaign event in his courtroom to which the media was invited.

He accepted a lawyer's endorsement and announced his endorsement by another attorney.

He then gave a campaign speech and took election-related questions from the media, including about his opponent

As an experienced judge with thirty-six years on the bench, you should have known that it was improper to hold a campaign event in your courtroom.

To no avail as reported by Knox News

For the first time since 1986, Knoxville will have a new municipal judge. Incumbent John Rosson lost his seat to challenger Tyler Caviness.

Rosson, 76, has served as judge since 1986 and ran on his track record of experience, arguing "if it isn't broken, don't fix it."

Caviness, a 32-year-old attorney, advocated for change throughout the campaign. He won 61.5% of the vote, promising to update the city court website and offer more accessibility in the courtroom.

Caviness received 9,450 votes to Rosson's 5,925.

(Mike Frisch)

One Last Sentencing

A newly appointed judge may continue to practice law as a prosecutor prior to formal installation, according to a recent opinion of the Florida Judicial Ethics Advisory Committee

Facts

The inquirer is an assistant state attorney who has recently been appointed to the County Court.  The attorney has been the lead attorney on a homicide case that has been tried to verdict.  The inquiring appointee asks whether he/she will be able to handle the sentencing hearing in the case on December 1, which will occur prior to commencing their judicial service on December 4.

Discussion

JEAC Op. 1974-13 is directly on point.  In that opinion, the Committee determined that a circuit judge-elect could continue to act as an assistant state attorney in the trial of cases in the Circuit Court until he assumed office as circuit judge.  Other opinions have determined that attorneys elected or appointed to judicial office may continue to practice before courts of the circuit where that attorney is to preside, prior to being sworn in.  See Fla. JEAC Ops. 1984-21, 2000-39 and 1988-29. The Committee has previouslyrecognized that many newly selected judges leave an active law practice prior to their appointment or election to the bench.  It would, therefore, be impractical for the Code to prohibit the newly selected judge from handling any cases between the date of the selection and the date of the judge’s taking office.  JEAC Op. 2005-08.

As such, the Committee is of the opinion that the newly appointed judge may continue to practice law and attend the sentencing hearing prior to the commencement of their judicial service.

(Mike Frisch)

Credit For Time Served After Nine Year Interim Suspension

The Ohio Supreme Court has indefinitely suspended a former judge with credit for time served

Hunter’s indictment was based on conduct that she had allegedly undertaken in her role as a juvenile-court judge. On October 14, 2014, a jury returned a guilty verdict on a single count of having an unlawful interest in a public contract in violation of R.C. 2921.42(A)(1), a fourth-degree felony. The court sentenced Hunter to six months in jail followed by one year of nonreporting probation and ordered her to pay the court costs.

On October 21, 2014, we suspended Hunter from the practice of law on an interim basis based on her felony conviction.

At the bar discipline hearing

Hunter contended that the criminal charges against her were politically motivated because she was the first black Democrat elected as a judge of the Hamilton County Juvenile Court and sought to implement change. Hunter and her witnesses offered testimony that Hunter had actively worked to reform the court’s procedures and operations and implement improvements in the juveniledetention facility.

Hunter agreed that she was convicted of the fourth-degree felony offense of having an unlawful interest in a public contract under R.C. 2921.42(A)(1). But she maintained that the evidence presented at her trial did not warrant a conviction under the language of that statute.

Her due process violations and other argument were rejected

The court of appeals’ recitation of the evidence presented at Hunter’s trial demonstrates that upon being informed of the potential termination of her brother’s employment, Hunter sent an email to all employees of the Hamilton County Juvenile Court Youth Center identifying numerous safety concerns that resembled the main explanations her brother had given for his actions that were under investigation. Hunter, 2016-Ohio-123 at ¶ 7. Hunter requested many documents—including some that “would not have been provided to any employee under any circumstances,” id. at ¶ 1—and her brother testified that she provided those nonpublic documents to him and that he took them to his attorney, id. at ¶ 11.

Those facts support the board’s inference that Hunter acted to protect her brother’s job and that her actions in that regard violated her duty under Jud.Cond.R. 1.2 to act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary. They also support the board’s conclusion that she abused the prestige of her judicial office to advance the personal or economic interests of her brother in violation of Jud.Cond.R. 1.3, that she permitted her familial relationship with her brother to influence her judicial conduct in violation of Jud.Cond.R. 2.4(B), and that she knowingly disclosed nonpublic information acquired in her judicial capacity for a purpose unrelated to her judicial duties in violation of Jud.Cond.R. 3.5. We therefore adopt the board’s findings of misconduct.

Sanction

We acknowledge that the misconduct for which Hunter was convicted does not rise to the level of misconduct that we found warranted permanent disbarment in Terry, McAuliffe, and Gallagher. But given that Hunter’s conviction under R.C. 2921.42(A)(1) arose from conduct that she undertook in her role as a judge, it is far more significant than an attorney’s violation of the same statute in Schmidt. Based on Hunter’s criminal conviction and the factual findings set forth in the court of appeals’ opinion affirming that conviction, Hunter has been found to have violated the law, abused the prestige of her judicial office to advance the personal interests of another, allowed a familial relationship to influence her judicial conduct or judgment, and disclosed or used nonpublic information acquired in her judicial capacity for her brother’s benefit, and she has thereby failed to act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary. On these facts, we are not persuaded by Hunter’s arguments that she should receive any sanction less than an indefinite suspension.

Finally, we recognize that Hunter has served nearly nine years under her interim felony suspension. Given that an attorney or judge who has been indefinitely suspended from the practice of law may ordinarily petition this court for reinstatement after just two years, see Gov.Bar R. V(25)(A), we agree that the board’s recommended sanction of an indefinite suspension with credit for the time that Hunter has served under her interim felony suspension is the appropriate sanction in this case. Because Hunter will be eligible to petition this court for reinstatement immediately upon the issuance of our decision and order in this case, this sanction cannot be considered a de facto disbarment.

Justice Fischer

I disagree with the majority’s decision to give Hunter credit for the time that she has served under her interim felony suspension. Hunter committed a felony offense, acted with a selfish motive, and has taken no responsibility for her actions—she has consistently and unfairly blamed others for her prosecution and hardships. This court should indefinitely suspend Hunter from the practice of law with no credit for the time she has already served. Thus, I respectfully concur in part and dissent in part...

Hunter has unequivocally expressed to this court through her brief and at oral argument that she does not acknowledge any wrongdoing and instead blames this court, the board, disciplinary counsel, and other legal professionals for her legal situation. Hunter takes on the role of victim, alleging that “the Ohio Supreme Court, in concert with the Hamilton County Prosecutor’s Office, and Ohio and Hamilton County Republican Parties” have used “unprecedented legal intervention and aggressive intimidation” to try to prevent Hunter from becoming a Hamilton County Juvenile Court judge. Hunter maintains that her case “exposes that the Ohio Supreme Court operates a clandestine, arbitrary system of discipline and applies different standards of law and ethics, depending on the ethnicity and political affiliation of the accused.” Hunter further expresses that the board “hypocritically and discriminatorily allows members of the bar with powerful family members, political connections and money [who] openly violate the Ohio Rules of Professional Conduct and the Ohio Code of Judicial Conduct to avoid discipline and escape prosecution, but targets lawyers that report and expose them for removal.” She asserts that her case reveals “two systems of justice,” one for her and one for “the elite.” During her oral argument, Hunter alleged that disciplinary counsel acted hypocritically in charging her with violations of the Code of Judicial Conduct after she was convicted of a fourth-degree felony offense but not charging other members of the bench who she believes have also committed wrongdoing but who have never been charged with crimes. Hunter believes that her case demonstrates that the entirety of the legal system is colluding against her. But this assertion could not be further from the truth.

Justice Lewis joined the concurring/dissenting opinion. (Mike Frisch)

A Father's Concern Is A Judge's Misconduct

The New Mexico Supreme Court has imposed a public censure of a district court judge for conduct on behalf of his crime victim daughter

This disciplinary proceeding arose out of a criminal case, Cause No. D-307-CR-2018-00203, in which Judge Martin’s daughter was the victim of an aggravated assault by use of a firearm. The criminal case proceeded to a two-day jury trial commencing on July 26, 2021. On the evening after the first day of trial, Judge Martin had a telephone conversation with Assistant District Attorney (ADA) Samuel Rosten. During that conversation, Judge Martin advised the ADA that he should use the phrase “brandish a firearm” or something similar in the court’s jury instructions rather than asking the jury to find that the defendant “pointed a firearm” at Judge Martin’s daughter. The next day, ADA Rosten submitted an amended jury instruction, for the court to consider, alleging that the defendant “brandished and/or pointed a deadly weapon” at Judge Martin’s daughter.

The jury found the defendant guilty of aggravated assault by use of a deadly weapon as charged in count I and a special verdict finding that a firearm was used in the commission of count I.

After the verdict, Judge Martin and his daughter met with the ADA to discuss the case. During that meeting, Judge Martin admonished the ADA about whether or not the defendant had been remanded into custody after the verdict.

After the defendant was sentenced, an appeal was filed in the criminal case, and this disciplinary proceeding followed.

Conversations with the prosecutor

A. On or about July 26, 2021, during a telephone conversation with Assistant District Attorney Samuel Rosten (“Mr. Rosten”), and after reviewing the proposed jury instructions filed in the court’s electronic filing system in Cause Number D-307-CR-2018-00203, a case in which Judge Martin’s daughter was the alleged victim, Judge Martin advised Mr. Rosten to use the term “brandished a firearm” in his jury instructions rather than asking the jury to find the [d]efendant “pointed a firearm” at the alleged victim, Judge Martin’s daughter.

B. On or about July 27, 2021, after the verdict in Cause Number D-307-CR-2018-00203, Judge Martin engaged in a conversation with Mr. Rosten and his co-counsel Assistant District Attorney Spencer Willson (Mr. Willson) after they were informed that Judge Martin and his daughter wanted to speak to them. Both Mr. Rosten and Mr. Willson left the courtroom to speak with Judge Martin and his daughter in a room down the hall from the courtroom. Before Mr. Rosten and Mr. Willson arrived, [Judge Martin] and [his] family had been advised that the defendant had been remanded to custody, but once Mr. Rosten and Mr. Willson arrived, [Judge Martin] did admonish Messrs. Rosten and Willson, “Good thing he was remanded, otherwise I would have told you to go back in there and try again.”

The court

We recognize that when the family member of a judicial officer becomes enmeshed in the legal system, it can be stressful for everyone involved. This is especially true when the family member is the victim of a violent crime. The natural impulse of parents is to provide comfort, reassurance, and protection for their children. In this case, Judge Martin may have felt that he was acting in the best interest of his daughter, however, judges, unlike other parents are held to a higher standard. See Rule 21-001. Based upon his experience, Judge Martin recognized a mistake of law in the ADA’s proposed jury instructions. Judge Martin believed that he was acting in his daughter’s best interest by pointing out the mistake. Judge Martin’s actions created an appearance of impropriety, which should not be ignored.

In regard to the conversation between Judge Martin and the ADA after the verdict, we must again conclude that this creates an appearance of impropriety. While we recognize that emotions may have been running high after the verdict, we again must counsel the judiciary that judges are held to a higher standard. See id. Due to the imbalance of power between a judge and a litigator, a judge must always promote confidence in the judiciary. See id. Therefore, Judge Martin’s admonitions to the ADA created both an actual impropriety and an appearance of impropriety.

Finally, with respect to the third allegation that Judge Martin allowed his daughter, who was both the victim and the witness in the criminal case, to use his chambers while waiting for her opportunity to testify, this also creates an appearance of impropriety. The trial in the criminal case occurred during the COVID-19 pandemic, and pursuant to this Court’s order, the Third Judicial District courthouse was under restrictions, which limited the public’s access to the facilities. Therefore, Judge Martin inappropriately allowed his daughter to remain in his chambers until called to testify. Because of the limited public access to the court facilities, this may not have created an actual appearance of impropriety, it did however create a potential for an appearance of impropriety. Therefore, Judge Martin’s conduct cannot be condoned.

(Mike Frisch)

Related To The Merits

A judicial misconduct complaint brought by an unnamed complainant against an unnamed district court judge has been dismissed by the Chief Judge of the United States Court of Appeals for the Ninth Circuit

This misconduct complaint arises out of an attorney disciplinary matter. In the misconduct complaint, the complainant alleges that the district judge “made a gross error in his decision to affirm the Bar’s suspension” and that the district judge refused to consider evidence. These allegations are related to the merits and must be dismissed on that ground. See 28 U.S.C. § 352(b)(1)(A)(ii); In re Complaint of Jud. Misconduct, 838 F.3d 1030 (9th Cir. Jud. Council 2016) (dismissing allegations that a district judge and magistrate judge made various improper rulings as merits related); Judicial-Conduct Rule 11(c)(1)(B).

Complainant also alleges that the district judge violated his due process rights by improperly acting as a prosecutor in lieu of the State Bar. A review of the record reveals that the disciplinary proceedings were conducted pursuant to the local rules of the district court and the district judge explained that the district court did not have appellate jurisdiction over the State Bar’s decisions. Initiating reciprocal attorney disciplinary proceedings is not improper. See In re Kramer, 282 F.3d 721, 724 (9th Cir. 2002) (finding the district court's imposition of reciprocal attorney discipline proceedings based on a state's disciplinary adjudication was not an abuse of discretion); see also 9th Cir. R. 46-2(c). Because complainant provides no objectively verifiable evidence of misconduct in this matter, this allegation must be dismissed. 

(Mike Frisch)

Your Magistrate

A $1,000 fine of a judicial candidate has been affirmed by the Ohio Commission of Judges

Based on the joint stipulations, the joint exhibits, and the hearing transcript, the hearing panel did not abuse its discretion in finding that respondent knowingly or recklessly violated Jud.Cond.R. 4.3(A) and (G). Judicial candidates are responsible for reviewing and approving the contents of all campaign materials before they or their campaigns disseminate those materials. Jud.Cond.R. 4.2(A)(2). Paragraph one of the complaint addresses two instances in which respondent’s campaign posted photos of her in a judicial robe but with no disclaimer or other language identifying her as a magistrate. The parties stipulated that on these two occasions, respondent’s campaign committee posted the photos without a proper disclaimer. The photos are stipulated exhibits in the record, and the parties agreed that the exhibits are authentic and admissible. The parties also stipulated that these two photos knowingly or recklessly misrepresented respondent’s qualifications. The hearing panel reviewed the evidence and agreed.

The same goes for the statement respondent made at a Guernsey County Republican Club “Meet the Candidate” event and the two radio advertisements referred to in paragraphs two and three of the complaint. The parties stipulated that the recordings of these events were authentic and admissible and each included respondent’s misstatements that she was a judge when she was  actually a magistrate. The parties likewise stipulated that these misstatements were made knowingly or recklessly and that they violated Jud.Cond.R. 4.3(A) and (G). The hearing panel reviewed the evidence and agreed. Accordingly, after reviewing the evidence in the record, the commission finds that clear and convincing evidence supports the hearing panel’s findings of fact and conclusions of law. The commission further finds that the hearing panel did not abuse its discretion.

Accordingly, after reviewing the evidence in the record, the commission finds that clear and convincing evidence supports the hearing panel’s findings of fact and conclusions of law. The commission further finds that the hearing panel did not abuse its discretion.

The commission concurs with the hearing panel’s recommendation that respondent be required to pay a fine of $1,000 for her violations of Jud.Cond.R. 4.3(A) and (G) and the costs of the proceedings. The commission also concurs with the hearing panel’s recommendation that respondent pay complainant’s reasonable attorney fees.

(Mike Frisch)

Tinder Loving Care

A disciplinary summary from the web page of the Colorado Presiding Disciplinary Judge

In the summer of 2021, Scipione was a district court judge in Arapahoe County. His staff included a legal assistant and a law student interning as a summer law clerk. During the law clerk’s internship, Scipione referred to his legal assistant using a derogatory gendered term. Scipione also made comments that made the law clerk feel uncomfortable. He commented about the law clerk’s appearance, including about the law clerk’s arms and hairstyle, and he joked that he was “jealous” of the law clerk’s relationship with another court employee. On one occasion, after the law clerk inquired about a ring Scipione was wearing, Scipione explained that he was consensually non-monogamous and discussed details about a “ranch” that catered to that “lifestyle.” He asked the law clerk to assist him in using the Tinder dating application.

During the same summer, Scipione emailed the judge presiding over a probate action for his father’s estate. Using his judicial email address, Scipione requested that the judge expedite an order of appointment and letters testamentary in the case. Scipione ultimately filed a motion seeking the same relief, which was primarily ministerial in nature.

In a stipulation reached in judicial discipline proceedings for this conduct, Scipione agreed to be publicly censured and resigned from the bench.

Delay Draws Reprimand

Delay in deciding motions drew a public reprimand of a Nashville chancellor from the Tennessee Board of Judicial Conduct.

A litigant had filed a complaint after six motions filed in October 2022 and heard on November 18 of that year were not acted on despite the chancellor's assurances that he would rule by a certain date.

He will be required to submit semi-annual reports to disciplinary counsel of the status of matters before him.

The reprimand notes that the chancellor had sanctioned for delays on two occasions.

Further delays will result in a 30-day suspension. (Mike Frisch)

Both Sides Now (But Not In Florida)

Judicial Discipline charges brought by the Florida Judicial Qualifications Commission have an unsavory odor of selective enforcement as suggested by the accused judge's response

The 2022 judicial race for Circuit Court Judge, Group 37, was unlike other judicial races. In the lead up to the election, and in the wake of the Dobbs v. Jackson Women’s Health Organization decision (and the leak of an earlier draft), the national media latched onto this race not because of any actions Judge Jacobs took, but because of the Second District Court of Appeal’s reversal of Judge Smith’s order denying a judicial bypass of a minor seeking an abortion. In re Petition for Judicial Waiver of Parental Notice & Consent or Consent Only to Termination of Pregnancy, 333 So. 3d 265 (Fla. 2d DCA 2022).

This media attention highlighted this election as an important race and defined it as one about reproductive rights, with a focus on Judge Jared Smith’s prior ruling. This resulted in Judge Jacobs’ endorsement by organizations like Planned Parenthood and Indivisible Action Tampa Bay, who would otherwise generally not engage in judicial campaigns, and in members of the public using Judge Smith’s prior decision as an argument in favor of his opponent.

This also resulted in Judge Jacobs’ opponent, Judge Smith, making and supporting statements he may not have otherwise made and many of Judge Jacobs’ comments at issue here were made in response to these. For example, Judge Jacobs’ concern about antisemitism was only raised after Judge Smith stood next to his wife while she made a number of comments about Judge Jacobs – who is Jewish – like “we pray for her, she needs Jesus” and that “to deny God and deny the Bible, [Judge Jacobs’] heart is very hard toward God.”

Judge Smith also had a campaign advertisement (later removed) that alleged that Jacobs was “woke,” had a “liberal agenda,” and would be an “activist judge.” If politics, religion, and disparaging claims were injected into this campaign, it was not due to Judge Jacobs, but she did respond.

It appears that no formal charges will be brought against Judge Smith. However, the context in which the alleged actions took place is relevant in considering Judge Jacobs’ actions and her ability to continue to serve as a judge. Judge Jacobs regrets that the 2022 race took the path it did, but hopes this panel will recognize that it was not her actions alone, but a culmination of many factors, that made it a more difficult race than other judicial elections.

During the pendency of the confidential investigation, Judge Jacobs felt constrained in her ability to apologize but now that the matter is public, she has expressed her remorse to the impacted individuals.

Judge Smith - who lost - received a judicial promotion from Governor DeSantis.

As reported by WFLA 8

The Florida Judicial Qualifications Commission has found probable cause to bring charges against Hillsborough County Circuit Judge Nancy Jacobs, according to recently-filed court documents.

The commission, which was formed to investigate alleged misconduct by Florida state judges, alleged Jacobs made “inappropriate and disparaging remarks” about her opponent last year.

Jacobs defeated the incumbent Circuit Judge Jared Smith, who made headlines earlier that year for a ruling on a Tampa-area teenager’s request for an abortion without parental consent. In the Jan. 2022 ruling, Smith wrote that the 17-year-old was not mature enough to get an abortion, citing her 2.0 grade point average, among other things.

According to court documents filed Thursday, remarks about the case were posted to Jacobs’ campaign social media accounts, saying Smith “ordered (the teenager) to have forced birth.” The campaign also called smith a “scary man” and decried his suspected “anti-abortion views.”

The race between Jacobs and Smith focused on abortion and the role religion plays for those on the judicial bench. As cited in the court documents formally charging Jacobs, she questioned if Smith’s religious beliefs influenced his ruling.

“Religion is important but it seems to be it has wrapped up his entire life… your God and your Bible should not be your moral compass… you need to set those things at the door and make a decision as a judge and do your job as a judge, and that is what sets me apart from my opponent as well,” Jacobs said at a campaign forum in July 2022.

Jacobs was accused of sending a text message to a citizen saying her opponent was “a bigot, an anti-Semite…not a good person… hates me and people like me.”

The court documents allege Jacobs sought an endorsement from the Florida Planned Parenthood PAC, which “appeared to be a commitment to ruling a certain way in cases involving abortion,” the commission wrote in its notice. The PAC tweeted its congratulations to Jacobs after she won the primary.

Jacobs was accused of “inappropriately (injecting) partisan politics into the strictly non-partisan judicial campaign” by accepting an endorsement from Indivisible Action Tampa Bay, “an expressly partisan organization whose stated mission is to … ‘defeat…right wing takeover of American government’,” court documents stated.

The notice stated Jacobs “has admitted to the conduct and that it violated the Code of Judicial Conduct” in each of the six charges against her.

When reached for comment, Jacobs’ attorney, Brian Tannebaum of Miami, provided the following statement:

“Judge Jacobs has served the people of Hillsborough County well and looks forward to continuing to fairly and impartially administer justice.”

 BRIAN L. TANNEBAUM

After losing to Jacobs in the 2022 election, Smith was appointed to the Sixth District Court of Appeal by Gov. Ron DeSantis.

According to the Qualifications Commission, Jacobs has 20 days to file a response to the charges before appearing at a hearing. If she is found to have violated the rules of conduct, the commission could recommend disciplinary measures, including removal from the bench.

The Florida Supreme Court will have the final word.

Pleadings linked here.  (Mike Frisch)

Ex Parte Zoom Soliloquy Draws Proposed Sanction Of Florida Judge

The Florida Judicial Qualifications Commission recommends a 30-day suspension, public reprimand and three-month disqualification from criminal matters of a Liberty County judge

On the morning of June 15, 2023, immediately following a court hearing being conducted by Zoom, Judge Hosford dismissed an Assistant Public Defender from the Zoom meeting and instructed the Assistant State Attorney to remain on the Zoom call. Judge Hosford told the Assistant Public Defender that he was not going to speak with the prosecutor about “a particular—any pending case,” but that he wanted to “find out, you know, about who’s going to be doing my court, what the turnover is and that sort of thing.” (T._1/ lines 6-11). Based on the discussion that actually occurs, it is quite clear that this explanation to the Public Defender is, at best, misleading

Over the course of the next approximately 27 minutes, Judge Hosford addresses his concerns over the prosecutor’s decision to decline to file charges in a theft case where Judge Hosford had, just the day before, personally approved an arrest warrant for the accused. During the Zoom meeting, while addressing his displeasure with the way the prosecutor had declined to prosecute the case, Judge Hosford also admits to having provided investigative advice to the detective investigating the crime, including suggesting to the detective that he might get a search warrant to obtain more evidence of the crime. (T. 5/ lines 4-6) Judge Hosford also suggests to the prosecutor that he should have the detective “rework it and bring it back to me and I will issue it with supplemental.” (T. 8/ lines 10-12). To his credit, the prosecutor did not follow that suggestion, and Judge Hosford has since recused himself from this case specifically, and all criminal cases, as will be discussed below.’

During the June 15 conversation, Judge Hosford also made other comments clearly evincing a bias in favor of law enforcement. Among those statements, Judge Hosford told the prosecutor that his job is “to back up your sheriff, to back up your officer. That’s your job. And to back up your Judge.” (T._3/ lines 17-19). Judge Hosford continues, “And, yes, there were times that as a Judge I’d probably erred on the side of supporting them on a case that the community was upset about. It’s a small community you know, sometimes the characters are involved in crime.” He adds, “We’re still bound by the rules of evidence.” (T._3/ lines 20-25). The Commission is, frankly, at a loss to understand these stunningly inappropriate comments.

Part of the sanction

Recognizing the potential hardship that his inability to preside over criminal matters might create for the Circuit, Judge Hosford will pay a $2,000 fine intended to ameliorate the cost to the State of Florida for having to arrange coverage of his, approximately, one-day-a-month criminal docket.

Judge Hosford will also provide letters of apology to the Assistant Public Defender and Assistant State Attorney involved in the June 15 Zoom call

Finally, in order to avoid the possibility of such ex-parte conversations reoccurring, Judge Hosford is placing signage outside his chambers noting that he is not permitted to have ex-parte communications with any person about any case, and will notify the Sheriff and other law enforcement agencies, in writing, that he is not permitted to discuss pending or impending cases. Judge Hosford will establish a procedure to review proposed warrants electronically, without any contact with the requesting law enforcement officers- except where an emergency exists. Judge Hosford will also complete six additional Continuing Judicial Education credits on ethics topics.

In the immortal words of Major Strasser, the conversation was a trifle one-sided

“Soliloquy” is perhaps a more accurate description of the call, since the conversation is almost completely one sided. The prosecutor barely speaks and gives mostly pro forma responses.

(Mike Frisch)

A Tiff In Tiffin

Dan Trevas has a summary of a decision issued today by the Ohio Supreme Court

Tiffin City Council was authorized to declare the Tiffin-Fostoria Municipal Court judgeship vacant when former Judge Mark Repp was suspended from the practice of law, the Supreme Court of Ohio ruled today. The election next week to name a new judge can proceed.

In a 4-3 decision, the Supreme Court rejected Repp’s challenge to his replacement on the bench. Repp argued that when his one-year suspension ended in November 2022, he should have been able to return as the judge for the remainder of his six-year term that expires in 2025.

In a per urciam opinion, the Court found that under R.C. 1901.10(B), the city council could legally declare the sole municipal court judge position vacant because Repp was barred from his office for at least six months. Repp argued the law did not apply because he did not voluntarily vacate the position. The Court found the law does not assess the reason for the vacancy, but rather that “it matters only whether the judge was absent from his or her official duties for at least six consecutive months.”

Justices Patrick F. Fischer, Michael P. Donnelly, Melody Stewart, and Jennifer Brunner joined the majority opinion.

Chief Justice Sharon L. Kennedy and Justice R. Patrick DeWine issued separate dissenting opinions, explaining that R.C. 1901.10(B) was inconsistent with the Ohio Constitution’s processes for removing a judge. The dissents noted that the constitution permits the General Assembly to enact laws providing for the removal of a judge, but any law enacted under that authority must include the filing of a complaint against the judge and a hearing. Repp should have been allowed to retain his judgeship because the statutory process that the city council followed did not require filing a complaint against Repp or conducting a hearing, the dissents stated.

Justice Joseph T. Deters joined Chief Justice Kennedy’s dissent, and the chief justice and Justice Deters joined Justice DeWine’s opinion.

Suspension Led to Municipal Court Judge Replacement

Repp was elected in 2019 to a six-year term as Tiffin-Fostoria Municipal Court judge. The court has only one judge. In November 2021, The Supreme Court suspended Repp from the practice of law for one year and suspended him from his judicial office without pay for the duration of the suspension. Other judges were assigned to temporarily serve on the municipal court bench through November 2022.

Midway through Repp’s suspension, Tiffin City Council in June 2022 passed an ordinance declaring the municipal court judgeship vacant because Repp had been absent from his official duties for more than six months. Once the post was declared vacant, Gov. Mike DeWine appointed Rhonda Best to fill the vacancy in November 2022. That same month, Repp was reinstated to the practice of law.

Repp then requested a writ of quo warranto from the Supreme Court to remove Best from office. He filed other motions to regain the office and serve the remainder of his term.

In response to Repp, the Court directed the parties to submit briefs addressing whether an absence from office as a result of a suspension from the practice of law constitutes a “vacancy” under R.C. 1901.10, and how that law works in conjunction with removal procedures in the Ohio Constitution and the statutory removal procedures in R.C. 3.07 through R.C. 3.10.

Supreme Court Analyzed Vacancy Law
The Court noted that for Repp to be entitled to a writ of quo warranto, he must show that Best is unlawfully holding the office and that he is entitled to be the judge.

The opinion explained that R.C. 1901.10(B) states a vacancy in the office of municipal court judge exists “upon the death, resignation, forfeiture, removal from office, or absence from official duties for a period of six consecutive months.” The vacancy must be “determined and declared by the legislative authority,” and the parties agreed that Tiffin City Council is the appropriate legislative authority to declare a vacancy.

Repp argued that the law does not apply because it does not expressly state that vacancy may arise when a judge is unavailable because of suspension. Repp referenced R.C. 1901.121(A)(1), which states that if a municipal judge is “incapacitated or unavailable due to disqualification, suspension, or recusal,” the Supreme Court chief justice may assign a sitting judge to serve temporarily.

He maintained that the law indicates a difference between a vacancy and unavailability due to his suspension. He argued he did not vacate the office when he was unavailable because of his suspension.

The Court noted that being unavailable does not always lead to vacating the office. A judge could be unavailable for certain amounts of time, but not meet the standard under R.C. 1901.10(B). Repp was “persistently unavailable” for more than six consecutive months, which caused a vacancy in the judicial office, the opinion stated.

Under the law, once the council declared the office vacant, then the governor was authorized under the Ohio Constitution to appoint Best to fill the vacancy, the Court ruled.

Court Rejected Claim That Judge Was ‘Removed’ From Office
In addition to arguing that he did not vacate the office, Repp maintained that the city council “removed” him from office without following the procedures in Ohio law and the state constitution. The Court majority ruled that Repp was not removed from office and that “remove” means to force one to “leave a place or to go away.”

“The city council did not find that Repp had engaged in wrongdoing or force him out of office,” the opinion stated.

Rather, the council just declared the office vacant. Because he was absent, the procedures in the constitution governing removal do not apply, the opinion stated.

“There are several ways that a judicial office may become vacant – some by the judge’s choice, some not. Under the statute, when the judge has been absent from his or her official duties for six consecutive months, a vacancy in the judicial office exists. The reason for the judge’s absence does not matter,” the Court stated.

Constitution Established Judicial Removal Process, Dissent Maintained
In his dissent, Justice DeWine wrote that the Ohio Constitution establishes three methods for the removal of judges from office.

First, under Article II, Sections 23 and 24, a judge may be impeached by the Ohio General Assembly. Second, Article IV, Section 17 allows the General Assembly to pass a concurrent resolution by a two-thirds vote of each house, to remove a judge from office. That process requires a complaint to be filed against the judge, and the judge is provided with “notice of the complaint and an opportunity to be heard.”

Third, Article II, Section 38 allows the legislature to adopt laws for the prompt removal of public officials, including judges, from office “upon complaint and hearing.” The General Assembly enacted R.C. 3.07 through R.C 3.10 to remove a public officer. Those laws require the removal proceedings to begin in common pleas court through a complaint signed by at least 15 percent of the qualified voters in the area where the judge holds office.

The dissent noted that Tiffin did not use any of the three procedures to remove Repp and “[w]hen the Constitution charts a course that must be followed, the legislature cannot simply create an alternative one.” R.C. 1901.10(B) does not provide authority to remove a judge. It only explains how to move forward once the office has been forfeited or the judge was removed through one of the three authorized procedures, the dissent asserted. To do otherwise, it warned, “would elevate the statute above the Constitution”—which is something courts cannot do.

“Thus, R.C. 1901.10(B) provides a mechanism to declare a vacancy once removal has occurred through the constitutional process; it is not a mechanism to sidestep the Constitution,” Justice DeWine concluded.

Complaint and Hearing Essential to Removal Process, Dissent Argued
While joining Justice DeWine’s dissent, Chief Justice Kennedy wrote a separate dissenting opinion to explain that of the three constitutional processes for the removal of a judge, only Article II, Section 38 could have authorized the enactment of R.C. 1901.10(B). But while Section 38 allows the legislature to enact laws to promptly remove a judge from office, that section indicates that the law must require the filing of a complaint and a hearing.

The chief justice noted that by allowing a local government body to declare a judicial office vacant under R.C. 1901.10(B), the state law “essentially provides for the removal of a sitting judge.” She wrote that R.C. 1901.10(B) is not authorized by Section 38’s removal provision because the statute does not require the filing of a complaint against the judge or a hearing before the judgeship is declared vacant and the judge is removed from office. She concluded that Repp was eligible to retake his seat when his suspension ended.

2022-1463. State ex rel. Repp v. Best, Slip Opinion No. 2023-Ohio-3924.

The suspension order involved ordering a drug test of a courtroom observor and holding her in contempt and is linked here.

In this case, the board found that in contrast to the victim in Bachman, who briefly interrupted a court proceeding, A.O. did absolutely nothing to justify Repp’s attention in the courtroom—let alone his order that she be drug tested. In addition to violating Jud.Cond.R. 1.2, 2.2, and 2.8(B), as Bachman did, Repp has admitted that his conduct violated Prof.Cond.R. 8.4(d). Repp’s undignified, improper, and discourteous demeanor had been directed at two victims—A.O. and T.D.—as opposed to Bachman’s single victim. In addition, A.O. suffered great personal indignities and emotional distress as a result of the security and medical screenings she had to endure during her incarceration, on top of the anxiety regarding the care and well-being of her two young children. Furthermore, Bachman had a significant mitigating factor that was not present in this case—namely, other sanctions imposed for his misconduct by virtue of the loss of his employment.

(Mike Frisch)

Judge Reprimanded

The Tennessee Board of Judicial Conduct has released a May order of suspension and recent public reprimand of a Shelby County criminal court judge.

The earlier order of suspension had been kept private in order for the judge to address mental health and/0r substance abuse issues.

The judge failed to complete an assessment and cooperate with the Bar's treatment program for judges and lawyers.

With respect to compliance, the judge "declared publicly"

she has not done so and does not plan on doing so

As the board cannot permanently remove the judge, the matter is being reported to the state General Assembly. (Mike Frisch)

"This Is Inane"

An appeal of a Master's findings favorable to a judge charged with misconduct as a prosecutor is scheduled before the Michigan Judicial Tenure Commission

Disciplinary Counsel and respondent have filed briefs addressing the Master's report in FC 104, Hon. Paul J. Cusick. Disciplinary Counsel's objections to the report may be accessed here. Respondent's brief in support of the report may be accessed here.

Counsel have until November 6, 2023, to file responses. The Commission will then schedule oral arguments.

Oral argument is now scheduled on January 8, 2024 at 10:00 am. 

From the brief of Disciplinary Counsel

The Master issued a report concluding that the evidence was insufficient to establish that respondent committed any of the alleged misconduct. Disciplinary counsel disagree with virtually all of the Master’s significant findings. The Master’s report accepted many of respondent’s arguments with little or no analysis and simply ignored the extensive evidence that supported the allegations and contradicted respondent’s claims. The report omitted essential context of transcript it cited and made basic factual and logical errors.

The Commission should reject the Master’s findings of fact and conclusions of law and find the misconduct alleged in each count of the complaint was established.

Relief sought

The misconduct established by a preponderance of the evidence includes that respondent made false statements to the Commission, misled judges before whom he was litigating, and violated his ethical obligations as a lawyer and prosecutor. Respondent committed the misconduct over the course of three years as a prosecutor with the Attorney General’s office, then continued with his false statements to the Commission during the investigation and while he was a judge. For the reasons stated below, disciplinary counsel believe the appropriate sanction is to remove respondent from the bench.

The judge's counsel takes a contrary view

The evidence is clear that Paul Cusick faithfully executed his duties and responsibilities as an Assistant Attorney General and as Judge. He was truthful throughout this years-long process.

Regarding the McCully case, Cusick made clear in his notes to the Attorney General case file, in all correspondence, and within every court record that there would be absolutely no promises and no agreement in exchange for McCully’s work as a CI. The Kastigar letter, signed by McCully and his attorney Fishman, contained express acknowledgements confirming the basis of the plea two months earlier that there was not and would not be such an agreement. Yet, Sgt. Calleja just days later unilaterally wrote down a completely different statement on McCully's CI source card - which Cusick never saw.

Despite an incontrovertible record that shows no agreement with anyone, Disciplinary Counsel's theory was that an agreement was made with McCully and then another made with Loggie for McCully's sentencing benefit. This is inane.

While Disciplinary Counsel was able to inveigle various persons during ex-parte interviews into signing statements that there was "an exchange" or "deal" during the investigation, those witnesses all corrected this false notion by the time of the hearing. Even Sgt. Calleja admitted in his testimony that there was "no deal". Fishman expressly rejected the fabricated idea of an "exchange". And, as she always has insisted, Loggie confirmed there was no agreement in her testimony.

As made crystal clear during the proceedings, Cusick always followed office policy whenever there was an agreement with a defendant or witness. That policy was to seek written authorization for and to document the scope and extent of any such agreement and to have that confirmed in writing by the witness/ defendant and their counsel. There was no agreement with McCully or Loggie. None. Still Disciplinary Counsel tried to manufacture an agreement that never existed.

[Defense counsel in the underlying case] Komorn admitted that he knew Loggie was a CI with signed documentation and purposely and strategically did not ask for that documentation. It is uncontested that neither CI source card was ever in Cusick's possession. Cusick did not withhold any information from Komorn. And Ms. Collins and the AG's office had access to all of the  information Cusick was given.

A process of answering nearly 1000 questions in various forms during the Disciplinary Counsel's investigation was complicated by the lapse of time but made completely unfair when Disciplinary Counsel withheld material exculpatory
information. This omission made all the more fundamentally unfair when Disciplinary Counsel deceived key witnesses by withholding that same critical information from them. Those witnesses would later repudiate portions of the ex parte statements prepared by Disciplinary Counsel after learning the facts and circumstances purposely misrepresented and hidden from them by Disciplinary Counsel.

Cusick's answers to the letters and pleadings contain his best recollection regarding cases from many years ago. At trial, testimony and documents corroborated the answers. One key fact established is that Loggie's involvement was in no way contingent on McCully receiving a benefit. Cusick insisted this was true during the investigation. Fishman confirmed this in his testimony. Judge Groner's statements from the plea and sentencing matched the testimony of Fishman and Cusick. And no witness testified that it was contingent, or that McCully received a benefit.

(Mike Frisch)

Unwarranted And Barefoot

The United States Court of Appeals for the Fourth Circuit declined to extend judicial immunity to a judge who had participated in the execution of a search warrant

We consider in this appeal whether a judge who participates in the search of a litigant’s home is entitled to judicial immunity for actions related to the search. Judge Louise Goldston went to Matthew Gibson’s residence to look for items he had failed to turn over to his ex-wife after their divorce. She entered his home over his objections after threatening him with arrest should he try to stop her. She then supervised the seizure of designated items in the house. The only question before us is whether judicial immunity shields these acts. We hold it does not. Judicial immunity protects only judicial acts. It does not shield the conduct of judges who step outside their judicial role, as Judge Goldston did when searching Gibson’s home.

At a post-divorce contempt hearing

On March 4, 2020, the parties gathered before Judge Goldston in her West Virginia courtroom for a hearing on the petition. Gibson’s ex-wife was represented by counsel; Gibson appeared pro se. The ex-wife was asked to testify about her grievances. In the middle of her testimony, Judge Goldston interrupted to ask Gibson for his address, which he gave her. She then recessed the hearing and ordered the parties to meet her at Gibson’s home. She did not explain the sudden change of venue and gave Gibson no opportunity to object before leaving the courtroom.

Judge Goldston, the bailiff, Gibson, his ex-wife, and her attorney all piled into their cars for the ten-minute drive over. Gibson rode with his new girlfriend, and the two spent the drive researching the procedure for disqualifying a judge. They were the first to arrive. Upon doing so, Gibson started an audio recording on his phone and his girlfriend started a video recording on hers while they waited outside for the others.

Part of the ensuing search was recorded

We lack a record of everything that happened. The bailiff recorded only seven minutes of the twenty-or-thirty-minute search. No one made a contemporaneous record of all that was taken. No police report describing the search was ever filed, even though the backup sheriff’s deputy eventually arrived, entered the home, and helped with the search. After the search, the parties reconvened in the courtroom, where Judge Goldston listed the items that had been recovered for the record. But no written order was ever entered describing or authorizing the search itself.

The judge was censured by the West Virginia Supreme Court of Appeals.

Judicial immunity is "strong medicine"

But the medicine’s potency cautions against its indiscriminate prescription. And so there are limitations. Judicial immunity does not protect judges so much as it protects the judicial acts they undertake as part of their public service; it is “defined by the functions it protects and serves, not by the person to whom it attaches.” Id. (emphasis in original). As such, judges are not protected if they act in the “clear absence of all jurisdiction over the subject-matter” or when they engage in nonjudicial acts. Bradley, 80 U.S. (13 Wall.) at 351; Stump, 435 U.S. at 360. We rest our holding that Judge Goldston is not so protected on the fact that she engaged in a nonjudicial act. Our decision is not grounded in any absence of jurisdiction. Rather, it is based on the fact that the judge clearly exceeded the most common understandings of the proper judicial role.

The judge went barefooting

At the outset, we note that Judge Goldston’s visit to Gibson’s home had none of the usual trappings of a judicial proceeding. She was not in a courtroom, nor was she wearing a robe. For much of the interaction she wasn’t even wearing shoes. Such a lack of judicial trappings, however, is not dispositive in judicial immunity cases. See Stump, 435 U.S. at 360. There have been instances where judicial immunity has been conferred even though a judge was not wearing a robe and even when a judge was not in a courthouse.

Outside the scope

While Judge Goldston might have had the authority to order a search, see Matter of Goldston, 866 S.E.2d at 137 & n.14, the proper authority to conduct the operation was the local sheriff’s department or some other appropriate law enforcement agency. Just as “judges do not do double duty as jailers,” Rockett, 71 F.4th at 672, so too they do not do double duty as sheriffs. While we understand Judge Goldston’s concern that the sheriff would not have executed a warrant with the speed or zeal that she would have liked, the separation of powers was intentional. And while a greater merger of judicial and executive functions might be more efficient, that very efficiency would facilitate abuses of power. The Framers made a tradeoff: they gummed up the gears just a bit in return for protection against tyranny.

(Mike Frisch)

"The Gown Of Judicial Protection"

The Tennessee Court of Appeals affirmed the denial of a motion to recuse a judge premised on the judge's granting a motion of the movant's attorney to withdraw without holding a hearing

Plaintiff timely filed his recusal motion in this civil action along with an attached affidavit and exhibits setting forth the factual bases for the recusal motion. In a nutshell, Plaintiff sought recusal of Judge Neill on the grounds that he failed to honor Plaintiff’s request to be heard at the hearing on the attorneys’ motions in the post-conviction case and that by not holding a hearing, Judge Neill “shielded counsel with the gown of judicial protection.” In his motion for recusal, Plaintiff accused Judge Neill of “unfair and biased conduct” in protecting “counsel from the embarrassment of their own actions in a withdrawal hearing.” Based on these events, Plaintiff contended that “it is only reasonable to believe that the Judge’s unfair and biased conduct [by granting the motion to withdraw without a hearing] would also affect his judgment in the post-conviction and civil lawsuit matter[s].”

Argument undressed

It is also relevant to note that this civil action for “fraud” and “conspiracy” against Plaintiff’s former attorneys, which is undeterred by the withdrawal of the attorneys in the post-conviction case, provides Plaintiff the opportunity to air his grievances concerning the alleged acts or omissions of his attorneys. As a consequence, Judge Neill’s ruling has neither “shielded counsel with the gown of judicial protection,” nor protected “counsel from the embarrassment of their own actions.”

(Mike Frisch)

Mail Call (Actually Text)

A town court justice has been admonished by the New York Commission on Judicial Conduct

Respondent, Benjamin L.F. Leavitt, a Justice of the Ossining Town Court, Westchester County, was served with a Formal Written Complaint (“Complaint”) dated October 4, 2022 containing one charge. The Complaint alleged that on or about September 8, 2021, respondent sought special consideration from his cojudge, Jeffrey W. Gasbarro, in connection with the disposition of one or more parking tickets issued to Amanda Billips, his mail carrier for the United States Postal Service (“USPS”). Respondent filed an Answer dated November 28, 2022.

After the mail carrier apprised him of her tickets

On or about September 8, 2021, respondent sent a text message to his co-judge, Jeffrey W. Gasbarro, asking whether the court’s calendar for the next day would include parking tickets. Judge Gasbarro replied affirmatively.

Respondent then sent Judge Gasbarro the following text message: “My mail carrier is on for a parking ticket. I told her I would talk with you. If you could take her postal service into account when deciding whether or not to go lower on the fine than Sonya is recommending that would be great.” (By “Sonya,” respondent meant Deputy Corporation Counsel Sonia Tanksley, who serves as the Ossining Village Prosecutor.)

Judge Gasbarro presided over Ms. Billips’s parking matters the following day and accepted a written plea agreement that Ms. Billips and Ms. Tanksley negotiated without his involvement. Judge Gasbarro imposed the fines reflected in the negotiated agreement.

Sanction

In determining the appropriate sanction, we note that respondent engaged in a singular attempt to use his influence to benefit another person. There is no indication that respondent acted for his personal benefit or gained in any way from contacting his co-judge about his mail carrier’s parking matter. Rather, he appears to have been motivated by a genuine, though inappropriate, wish to help his mail carrier. Respondent promptly accepted responsibility for his misconduct. He also expressed regret that he put his co-judge in a difficult situation and indicated that he has apologized to his co-judge. We have also taken into consideration respondent’s unblemished career as a lawyer and as a judge. When respondent appeared before us, he was contrite and pledged to be mindful of his ethical obligations and the high standards of judicial conduct.

(Mike Frisch)

A Loss For Thunder Bay

The Ontario Superior Court of Justice Divisional Court rejected an application of a justice of the peace to reconsider the sanction of removal from office for intervention in a matter involving her son

On February 5, 2019, the Applicant’s teenaged son was the driver of a car involved in a collision.  Upon learning of this event from her husband by telephone, the Applicant went to the scene of the collision.  At the scene, the Applicant and her son were informed by a police officer that “we believe your son didn’t stop” at the intersection.  Police laid a charge against the son of failing to yield pursuant to s. 136(1)(b) of the Highway Traffic Act, a charge for which the penalty, upon conviction, is a fine of $85, plus court costs, plus three demerit points.

The following day, February 6, 2019, the Applicant entered the non-public area of the Thunder Bay provincial offences court office, spoke with the Supervisor of Court Services, Jodie Kontzie, and provided Ms Kontzie with her son’s Certificate of Offence, requesting a trial.  The Certificate was processed by a clerk in the office, Jessica Strobel, who identified the case as one to be scheduled in “conflict court” because the defendant’s mother was a justice of the peace presiding in Thunder Bay.  Ms Strobel placed a note on the file stating “Conflict Court HW Gibbon’s son”.

 

An out of town justice was assigned to the case

 

The evidence is clear that [the Applicant] invited two out-of-town justices of the peace, HW McLeod and HW Chaput, to her home for dinner on the same date that her son was scheduled to appear in conflict court.  Regardless of whether she knew with certainty that HW Chaput would be the presiding justice of the peace at her son’s trial, [the Applicant] was clearly aware that an out-of-town justice of the peace would be presiding at her son’s trial that day, and she knew that HW Chaput was an out-of-town justice of the peace. 

 

Finding

 

The Review Council found as follows:

We further agree with presenting counsel’s position that the hearing panel can take into consideration that HW Gibbon’s testimony denying that she knew that HW Chaput would be presiding over her son’s trial is inconsistent with the account she gave in her response letter to the JPRC, dated August 31, 2020. Her letter suggests that she knew HW Chaput would be sitting on her son’s case when she stated: “I had no intention of attempting to influence him in respect to any decision-making role he may have played in respect to the Trial of my son…as the decision would already have been made”. Furthermore, when she invited him, she believed he would have rendered his decision before their dinner and had no intention of discussing the case with him at dinner. We find that the statements in her letter to the JPRC to be a more accurate reflection of Her Worship’s knowledge and thought pattern at the time she extended the dinner invitation to HW Chaput.

This passage is couched in moderate language but is devastating substantively.  It is a finding that the Applicant knew that HW Chaput would be presiding at her son’s trial – when she spoke to him the morning of the trial, when she extended a dinner invitation – and when she responded to HW Chaput’s text after the trial, cancelling his acceptance of the dinner invitation.  It is a finding that the Applicant’s oral testimony on this point was false.  It is in respect to an important point of contention and matters where it would be difficult to understand how the Applicant could have been mistaken.  At the very least it reflects a lack of trustworthiness, as a witness, that impugns the Applicant’s general reliability.

After the son was tried

 

On March 17, 2020, the Applicant encountered Ms Strobel in a check-out line at a local grocery store, and they had a casual conversation while paying for their groceries.  As they were leaving, Ms Strobel asked the Applicant how she was feeling, since the Applicant had been off work on medical leave.  In response, the Applicant discussed her son’s case and the stress it was causing her family, including the financial toll.  There was a conflict in the evidence about other aspects of this conversation, and the Review Council found that the Applicant also said the following to Ms Strobel:

(i)  her son’s conviction was unfair as it was possibly related to race or his being the Applicant’s son, as people were not happy with her appointment; (ii) all of the court clerks in the Thunder Bay office are experienced and know not to leave notes on court files; (iii)  she or her family were going to sue the City because her son was not treated fairly; (iv) she was under review by the JPRC and they were trying to take her job.

A Majority of the Review Council ordered removal from office

It is a loss for the judiciary that the Applicant may be removed from office as a result of the majority’s recommendation.  It is likewise a loss for Thunder Bay, for the North West Region, and for Ontario.  It is apparent that the majority were aware of this, and it explains why their conclusion weighed so heavily upon them.  But they concluded – as they were entitled to do on the record – that they could not be satisfied that the Applicant would discharge her duties independently, impartially and with integrity in future.  The desirability of retaining an indigenous jurist could not displace this core finding.

TB Newswatch,com reported on the case. (Mike Frisch)

2,900 Followers

The Ohio State Bar Association Certified Grievance Committee has filed a complaint against a probate judge for alleged conduct on Facebook concerning a conservatorship and guardian matter.

After a hearing

On October 23, 2020, a Facebook Page titled Hamilton County Probate Court, Judge Ralph Winkler, made a post titled “14 questions with Kendal M. Coes.”

On October 7, 2022, John Robert McCulloch commented on the post.

Respondent posted a response to Mr. McCulloch’s comment on Facebook:

a. Rob McCulloch, you’re just mad because we had to intercede and take care of your mother when you did not. You were living in your mother’s house under deplorable conditions. I am glad a nice neighbor called Senior Services and we got your mother into a safe, clean and healthy care facility. God only knows what would have happened to her if a Good Samaritan neighbor had not reported this elder abuse. The home photos in evidence don’t lie. Anyone in the public can look at them as they are part of your mother’s case file.

Respondent then posted a second comment in response to John Robert McCulloch on
Facebook:

a. You lost your case because you were wrong. You interviewed this poor woman with dementia with leading and suggestive questions to try to prove you weren’t wrong. However, you were wrong for not taking proper care of your mother. When you did make it to court you often reeked of alcohol. Plus, you also missed many hearings for unknown reasons. Don’t try to blame my court or Magistrate Coes for your shortcomings as a son. I am glad your neighbor reported this to the authorities. Your mother could have died or suffered needlessly if my court didn’t help her.

Multiple assertions within Respondent’s Facebook comment were incorrect, misleading, and/or not supported by the record including, but not limited to, the following:

a. The court had to “intercede and take care of [Mr. McCulloch’s] mother when [he] did not.”
b. A “neighbor called senior services” regarding Mary Frances McCulloch.
c. Mary Frances McCulloch suffered from elder abuse.

Respondent reported that his comments were in response to John Robert McCulloch’s posted personal attack of Magistrate Coes and his handling of the guardianship.

Respondent reported that, in making the Facebook comments, he relied on memory without
looking at the file or docket.
37. Respondent reported that, within a few hours, he realized he should not have made the comments and deleted them. He reported he immediately handed off control of the Facebook page to a staff member.

Respondent also deleted or “hid” Rob McCulloch’s comments.

When Respondent made the Facebook comment, Respondent, his Court Administrator, and head technology officer were administrators for the Facebook page.

When Respondent made the Facebook comment, there was a policy in place that the administrators for the Facebook page could delete negative or vulgar comments and block a person.

As of the filing of the complaint, the Hamilton County Probate Court, Judge Ralph Winkler Facebook Page had 2,900 followers.

The “14 questions with Kendal M. Coes” Facebook post received at least 81 “likes”, 15 comments, and 23 shares.

When Respondent made the comment, the guardianship remained open and remains open to this date.

At the suggestion of Relator, Respondent entered an entry of recusal on August 11, 2023.

Link to complaint here. (Mike Frisch)

All Hat

KSAT 12 reported on a recent reprimand of a Texas judge by the State Commission of Judicial Conduct

The Goliad County judge has been reprimanded by the State Commission on Judicial Conduct after he interfered with a warrant for the seizure of cattle.

Judge Mike Bennett arrived at two properties on May 26, 2021, and attempted to stop local law enforcement from seizing cattle that had been mistreated and were believed to be starving, according to a public reprimand from the State Commission on Judicial Conduct.

KSAT called Bennett’s office Wednesday and an office assistant said “he doesn’t have any comment on that” before hanging up the phone.

The public reprimand, which was issued on Aug. 16, said Goliad County constables, a Brazoria County Livestock deputy and a Houston Humane Society Chief Animal Cruelty officer and his team were loading animals into trailers in the 4300 block of Franke Road when Bennett arrived and asked workers to stop loading cattle until he could figure out what was going on.

Bennett told members of the commission that he was contacted by a rancher, who said the cattle were being hauled to another county. He denied ordering law enforcement to stop the seizure but acknowledged that he asked the workers to stop.

According to the public reprimand, Bennett left the first property and arrived at a second property along FM 622 and also attempted to stop the seizure of cattle at that location.

Goliad County Justice of the Peace Susan Moore issued the animal seizure warrant on May 25, 2021, and Bennett admitted to calling her twice to recall the warrant.

Bennett told the commission that the cattle were owned by Darryl Franke, who had recently died, and an estate hearing for Franke was scheduled in his court for the following week.

Bennett said he was concerned about the estate hearing and attempted to stop the seizure because he wanted to protect Franke’s property.

A Goliad County attorney filed a motion to release Bennett from presiding over the case due to his involvement in trying to stop the cattle seizure but Bennett voluntarily recused himself from the case.

The commission found that Bennett’s actions “constituted willful and persistent conduct that is clearly inconsistent with the proper performance of his duties and cast public discredit upon the judiciary or the administration of justice” before issuing the public reprimand.

A copy of the reprimand is attached to the report. (MIke Frisch)

Mere Veneer

The Florida Commission on Judicial Qualifications proposes a 30-day suspension without pay of a judge

The Commission’s investigation found that while campaigning for Polk County Judge in 2022, John B. Flynn (“Judge Flynn” or “Respondent”) made comments on social media, and used advertisements containing statements evincing an inappropriate bias in favor of law enforcement agencies or against people accused of crimes. Specifically, the Commission finds clear and convincing evidence that Judge Flynn’s campaign made repeated use of words and phrases signaling his support for law enforcement agencies in a way that could cast doubt on his impartiality

The inappropriate comments and statements, which Judge Flynn acknowledges he either personally wrote or approved the use of, include

O “Support Law Enforcement”;
O “Support our law enforcement agencies”;
O “#supportlawenforcement”;
O “Criminals won’t be happy to see me on the bench[.] I am tough if someone is found guilty the punishment should sting enough for the person to learn criminal behavior won’t be tolerated. I hope that is helpful because that is the truth.”;
O “...1 am not afraid of hurting peoples [sic] feelings if I was this would be the wrong job, I will sentence based on history because that is the best indication of future behavior and if they have a history Grady’s Hotel (aka the jail) is open 24*7 365 days a year.”

Statements such as these are clearly inconsistent with the impartiality, integrity, and independence of the judiciary. There are few campaign tactics more corrosive to the integrity and impartiality of the judicial system than a candidate broadcasting his or her support for one party or another. There is little discernible difference between statements of support such as these, and a judicial candidate openly advertising that he or she “Supports Personal Injury Lawyers,” or “Supports Insurance Defense.” Indeed, the only difference might be that the stakes are greatly increased in criminal cases where a person’s liberty is at stake

The Commission is aware that Judge Flynn also made comments to the effect that he would “follow the Constitution and the rule of law,” and that “Everyone will get a fair trial and be treated with respect...”, and “I will adhere to the rule of law.” Given, however, that these phrases were interspersed throughout his campaign theme of “Support Law Enforcement” and “Criminals won’t like to see me on the bench,” it is difficult to escape the conclusion that the statements about fair treatment were mere veneer.

Recommended sanction

The Judicial Qualifications Commission, therefore, finds and recommends that the interests of justice, public welfare, and sound judicial administration are best served by requiring Judge Flynn to receive a public reprimand and be suspended for 30 days without pay.

(Mike Frisch)