Thursday, November 15, 2018
The Florida Supreme Court has resolved a district court of appeal split on the disqualification implications of a lawyer-judge Facebook friendship
In this case, we consider an issue regarding the legal sufficiency of a motion to disqualify a trial court judge on the basis of a Facebook “friendship.” This Court granted jurisdiction to review the decision of the Third District Court of Appeal in Law Offices of Herssein & Herssein, P.A. v. United Services Automobile Ass’n, 229 So. 3d 408 (Fla. 3d DCA 2017), which held that the existence of a Facebook “friendship” was not a sufficient basis for disqualification and which expressly and directly conflicts with the decision of the Fourth District Court of Appeal in Domville v. State, 103 So. 3d 184 (Fla. 4th DCA 2012). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.
We hold that an allegation that a trial judge is a Facebook “friend” with an attorney appearing before the judge, standing alone, does not constitute a legally sufficient basis for disqualification. We therefore approve the decision of the Third District in Herssein and disapprove the decision of the Fourth District in Domville on the conflict issue.
Chief Justice Canady authored the majority opinion
We now come to the crux of the matter: what is the nature of Facebook “friendship?” “The word ‘friend’ on Facebook is a term of art.” Chace, 170 So. 3d at 803. In its most basic sense, a Facebook “friend” is a person digitally connected to another person by virtue of their Facebook “friendship.” See, e.g., Power Ventures, 844 F.3d at 1063; Ehling, 961 F. Supp. 2d at 662.
A Facebook “friend” may or may not be a “friend” in the traditional sense of the word. But Facebook “friendship” is not—as a categorical matter—the functional equivalent of traditional “friendship.” The establishment of a Facebook “friendship” does not objectively signal the existence of the affection and esteem involved in a traditional “friendship.” Today it is commonly understood that Facebook “friendship” exists on an even broader spectrum than traditional “friendship.” Traditional “friendship” varies in degree from greatest intimacy to casual acquaintance; Facebook “friendship” varies in degree from greatest intimacy to “virtual stranger” or “complete stranger.”
In some circumstances, the relationship between a judge and a litigant, lawyer, or other person involved in a case will be a basis for disqualification of the judge. Particular friendship relationships may present such circumstances requiring disqualification. But our case law clearly establishes that not every relationship characterized as a friendship provides a basis for disqualification. And there is no reason that Facebook “friendships”—which regularly involve strangers—should be singled out and subjected to a per se rule of disqualification.
LABARGA, J., concurring.
I concur with the majority opinion. However, I write to strongly urge judges not to participate in Facebook. For newly elected or appointed judges who have existing Facebook accounts, I encourage deactivation of those accounts. As explained by the majority, “friendship” on Facebook, without more, does not create a legally sufficient basis for disqualification. Rather, the unique facts and circumstances of each case, in addition to the base fact of “friendship,” are what will determine whether disqualification is required.
Nevertheless, as noted by the dissent, participation in Facebook by members of the judiciary “is fraught with risk that could undermine confidence in the judge’s ability to be a neutral arbiter.” Dissenting op. at 24. This is deeply concerning because judges are to decide cases solely upon the facts presented to them and the law. The public and the parties expect nothing less. Therefore, judges must avoid situations that could suggest or imply that a ruling is based upon anything else. Facebook “friendships” fall across a broad spectrum, from virtual stranger to close, personal friend. Because the relationships between judges and attorneys can fall anywhere on that spectrum, judges who elect to maintain Facebook “friendships” with attorneys who have any potential to appear before them are, quite simply, inviting problems.
Justice Pariente, J., dissented joined by two colleagues.
She quoted the 2012 lower court decision in Domville
Judges do not have the unfettered social freedom of teenagers. Central to the public’s confidence in the courts is the belief that fair decisions are rendered by an impartial tribunal. Maintenance of the appearance of impartiality requires the avoidance of entanglements and relationships that compromise that appearance. Unlike face to face social interaction, an electronic blip on a social media site can become eternal in the electronic ether of the internet. Posts on a Facebook page might be of a type that a judge should not consider in given case. The existence of a judge’s Facebook page might exert pressure on lawyers or litigants to take direct or indirect action to curry favor with the judge. As we recognized in the panel opinion, a person who accepts the responsibility of being a judge must also accept limitations on personal freedom.
And "wholeheartedly agree[s]"
While Facebook and other social media sites have become more sophisticated, recent history has shown that a judge’s involvement with social media is fraught with risk that could undermine confidence in the judge’s ability to be a neutral arbiter. For these reasons, I would adopt a strict rule requiring judges to recuse themselves whenever an attorney with whom they are Facebook “friends” appears before them. This rule does little to limit the judge’s personal liberty, while advancing the integrity of the judicial branch as the one branch of government that is above politics...
The premise of the majority opinion is that Facebook friendships and traditional friendships are analogous. But, equating friendships in the real world with friendships in cyberspace is a false equivalency. The existence of a Facebook “friendship” may reveal far more information regarding the intimacy and the closeness of the relationship than the majority would assign it. For example, as the majority explains, once a person becomes “friends” with another Facebook user, that person gains access to all of the personal information on the user’s profile page—including photographs, status updates, likes, dislikes, work information, school history, digital images, videos, content from other websites, and a host of other information—even when the user opts to make all of his or her information private to the general public. [cites omitted] Additionally, the ease of access to the “friend’s” information allows Facebook “friends” to be privy to considerably more information, including potentially personal information, on an almost daily basis.
The bottom line
The bottom line is that because of their indeterminate nature and the real possibility of impropriety, social media friendships between judges and lawyers who appear in the judge’s courtroom should not be permitted. Under this rule, the opposing litigant would not be required to delve into how close the Facebook friendship may be, the judge avoids any appearance of impropriety, and Florida’s courts are spared from any unnecessary questions regarding the integrity of our judiciary. Regardless, in this case, the judge was required to recuse herself because of binding precedent. Thus, I would quash the Third District Court of Appeal’s decision in Law Offices of Herssein & Herssein, P.A. v. United Services Automobile Ass’n, 229 So. 3d 408 (Fla. 3d DCA 2017), and approve the Fourth District’s decision in Domville.
Accordingly, I dissent.
The Florida Supreme Court has reprimanded a Miami-Dade County Court Judge.
we approve the parties’ stipulation to the allegation that Judge White-Labora improperly provided a character reference letter, on her official court stationery, on behalf of a criminal defendant awaiting sentencing in federal court, as well as the JQC’s finding that this misconduct violated two canons of the Code of Judicial Conduct. We also approve the stipulated discipline of a public reprimand.
The court quoted the Judicial Qualifications Commission
The Investigative Panel of the Commission has now entered into a Stipulation with Judge White-Labora in which Judge WhiteLabora admits that her conduct, in writing and sending a letter of reference to a sentencing judge, on behalf of a criminal defendant awaiting sentencing in federal court[,] was inappropriate. This conduct violated Canons 1 and 2 of the Code of Judicial Conduct, as set forth in the Stipulation and Notice of Formal Charges submitted herewith.
Judge White-Labora has admitted the foregoing, accepts full responsibility, and acknowledges that such conduct should not have occurred. She has cooperated fully with the JQC.
The court approved the sanction proposed by the JDC. (Mike Frisch)
The Judicial Qualifications Commission has concluded that while the judge did not intend to violate the Canons, she did not take appropriate steps to inform herself about the propriety of sending such a letter. Additionally, the Commission is mindful of the fact that her action in writing the letter, while inappropriate, was not motivated by selfish interests or motives. The JQC also notes Judge WhiteLabora’s lengthy and heretofore unblemished service as a judicial officer.
Thursday, November 1, 2018
Judge Crofoot was apprised by the Commission in September 2018 that it was investigating a complaint that she improperly interjected herself in a pending custody proceeding by criticizing one of the parties in an email to the court, identifying herself as a judge and lending the prestige of judicial office to advance a private interest.
She was a justice of the Barrington Town Court. (Mike Frisch)
Thursday, October 25, 2018
A judge convicted of assault was suspended for 36 months by a hearing panel the Michigan Attorney Discipline Board
Hometown Life reported on charges
Judge Sean Kavanagh found probable cause to bind over Judge Henry Perez in the case during a preliminary examination Tuesday afternoon at Livonia's 16th District Court.
Perez, 74 of Novi, is set to be arraigned April 11 in Detroit's Frank Murphy Hall of Justice on three counts of fourth-degree criminal sexual conduct.
Perez is accused of sexually assaulting a coworker Dec. 28, 2016, at the Social Security office at 19575 Victor Parkway in Livonia. The alleged victim was the lone witness to testify Tuesday afternoon during the hearing. She said Perez called her into his office after initiating some conversation that morning. He then closed the door and lifted her shirt up, pulling one of her breasts out of her bra, she said.
"I was trying to push away, but he started sucking on my right breast," she said. "I immediately started saying, 'Stop.'"
The Observer & Eccentric does not identify victims in alleged sexual assault cases.
The woman said Perez then grabbed her genitals over her pants, something she tried to stop. She said he also grabbed her buttocks.
She said she tried to leave the office to escape the incident, though she said Perez did not let up.
"I'm fighting him off but he's continuously overpowering me," she said.
She said she eventually was able to open the door to Perez's office, which is when he pulled her shirt back down. She said she then went to a supervisor's office but did not immediately discuss what had taken place.
"He's a judge," she said. "I felt like nobody would believe me."
It wasn't until a little later when she decided to call a friend and inform them of what took place when she revealed to her immediate supervisor what had happened, she said.
Police were called to investigate. The woman was transferred to an area hospital to have a rape kit test performed. Prosecutor Danielle Bennetts introduced those test results into evidence, which she said showed a high probability that Perez had assaulted her.
He was charged in the case earlier this month and remains on leave from his position within the Office of Disability Adjudication and Review.
Perez remains free on a $3,000/10 percent bond and is ordered to have no contact with the alleged victim, no firearms, and may not have any contact with the Social Security Administration building in Livonia. If convicted, he faces up to two years in prison.
Wednesday, October 24, 2018
A Cleveland magistrate received a stayed six-month suspension from the Ohio Supreme Court.
As a magistrate, Dunn was required to work eight hours per day, 40 hours per week. If he worked less than eight hours a day, he was required to use his accrued leave time to make up the difference. Pursuant to the juvenile court’s flexible-schedule policy, Dunn submitted a request to work from 7:30 a.m. to 3:30 p.m. beginning in December 2015. The court approved his request.
Beginning on June 13, 2016, and continuing every two weeks thereafter, Dunn received an automated e-mail from Kronos, the court’s electronic time-card program, stating:
Please review and approve your time card; your signature indicates that you have verified and approved the accuracy of your time card. Please be advised that falsification of electronic time records is a work rule violation and may result in discipline including removal from employment.
The juvenile court audited the biweekly time cards that Dunn submitted from March 15 to September 2, 2016. The court compared the times he reported on his time cards to a record of his employee-identification-keycard swipes and video footage from courthouse security cameras. The audit showed that Dunn had falsely entered his start or end time into his Kronos time card on 90 of the 122 work days during that period and received $5,051.04 in pay for 121.8 hours that he had not worked.
Dunn’s time discrepancies ranged from a few minutes to over five hours and inflated his work time by an average of 1.35 hours per day. For example, on March 31, 2016, Dunn entered the parking garage at 8:18 a.m. and left the parking garage at 10:52 a.m. On his time card, however, Dunn falsely reported that he arrived at 7:30 a.m. and left at 3:30 p.m. that day, thereby inflating his work time by 5.43 hours. Despite the fact that he failed to accurately record the times that he commenced work, ended work, or used leave time, Dunn personally approved 10 of the 13 audited time cards.
At a September 2016 disciplinary hearing conducted by his employer, Dunn submitted a written statement explaining that nausea and sleeplessness—the side effects of cancer treatment—had caused him to be late for work and to take longer breaks. He also testified that his absences had not affected his job performance and that he had kept current with his assignments.
While recognizing that Dunn’s misconduct “tarnished the reputation of the judiciary,” the board concluded that his immediate acceptance of responsibility for his misconduct combined with his immediate offer of repayment and his cooperative attitude toward the disciplinary process warranted the imposition of a lesser sanction than that imposed in Kramer. Therefore, the board recommended that Dunn be suspended from the practice of law for six months and that the entire suspension be stayed on the condition that he engage in no further misconduct. Having reviewed the record, we agree with the board’s findings and recommendation.
Cleveland.com reported on his resignation from the bench. (Mike Frisch)
Tuesday, October 23, 2018
A recent opinion of the South Carolina advisory Committee on Standards of Judicial Conduct
OPINION NO. 14 - 2018
RE: Propriety of a circuit court judge having a personal relationship with an employee of the Solicitor’s office.
A circuit court judge has begun dating someone who is employed by the circuit solicitor’s office. The employee is not a lawyer in the Solicitor’s office but is a member of the support staff. The employee’s duties are restricted to one county and include receiving warrants and discovery from law enforcement agencies, as well as victims’ claims and statements, and organizing the information into files on a computer system which then is sent to the assigned solicitor for his or her use in preparing indictments. The employee also communicates via phone, electronic and regular mail with the defense lawyers for discovery and scheduling of appearance, pleas, motions, or trials.
The judge inquires as to whether the judge may hear General Sessions cases within that circuit, including the county where this employee works. The judge also inquires as to whether, if there is any conflict, such conflict can be waived by the parties upon disclosure by the judge of the personal relationship.
A circuit court judge may engage in a personal relationship with an employee of the Solicitor’s office, whose duties are primarily scheduling and computer management, provided that certain disclosures are made in General Sessions cases in the county in which the employee works.
the inquiring judge here should disclose the judge’s personal relationship with the employee of the Solicitor’s office, but need only make this disclosure in the General Sessions cases in the county for which the employee is responsible. No such disclosure is needed for the General Sessions cases in other counties in the Solicitor’s circuit. As in the prior opinion, if the judge’s disclosure results in frequent disqualifications, the judge may need to reassess the relationship at that time.
Sunday, October 21, 2018
The Florida Supreme Court approved the sanction of removal from office of a county court judge for campaigning violations.
The court issued an opinion last week following its July decision.
The judge had hired a campaign consultant who played hardball
In October of 2016, your campaign published an e[-]mail addressed to potential voters, which lists your experience as a probation officer, a victim services advocate for victims of rape, homicide and domestic violence. Your advertisement then states that your opponent’s legal practice is “limited to criminal defense— representing murderers, rapists, child molesters and other criminals.”
A Facebook webpage offered the "truth" about her opponent
The headline banner of this page proclaimed that, “Attorney Gregg Lerman has made a lot of money trying to free Palm Beach County’s worst criminals. Now he’s running for
judge!” Below that, a photograph of Mr. Lerman was surrounded by the words, “CHILD PORNOGRAPHY,” “DRUG TRAFFICKING,” “MURDER[,]” “Identity Theft,” “RAPE,” “Sexual Assault,” “Internet Solicitation of Minors,” and “PEDOPHILES.” [emphasis used in original]
Santino’s numerous statements during her campaign evidenced a bias against criminal defendants, toward whom she imputed guilt; against criminal defense attorneys, whom she implied had some character fault because they “choose” to represent criminal defendants; and in favor of victims, whom she boasted that she worked to protect during her legal career. Such statements are sufficient to create fear on the behalf of criminal defendants—who are entitled to a presumption of innocence under the basic tenets of our judicial system—that they would not receive a fair trial or hearing...
Simply stated, Santino’s conduct does not evidence a present fitness to hold judicial office. It is “difficult to allow one guilty of such egregious conduct to retain the benefits of those violations and remain in office.” Alley, 699 So. 2d at 1370. We refuse to endorse a “win-at-all-costs-and-pay-the-fine-later” strategy, especially in light of our past warnings and stated intolerance for the kinds of campaign violations at issue here. By her own admission, had we imposed a fine as a sanction, it would confirm that Santino’s violations were “not a big deal.” Moreover, if this Court imposed a suspension, it would send a message to all attorneys campaigning for judicial office that they may commit egregious violations of Canon 7 during their campaigns and if they win, a suspension or a fine or both will be the only result. They will be allowed to reap the benefits of their misconduct by continuing to serve the citizens of this state. This we cannot condone. Accordingly, we continue to share the sentiments of the JQC:
We are mindful of—and heavy-hearted about—the testimony of Judge Santino’s witnesses that she is beloved by many, and a judge with a strong work ethic. However, were we to countenance her studied and continued refusal to abide by Canon 7, we would ourselves be undermining the rules governing judicial elections.
Justice Lewis concurred in the result only
Today, the majority has chosen to sanitize and soften the facts surrounding the campaign misconduct committed in this case apparently in the interest of political correctness or for some other reason. The circumstances of this case, however, are so egregious and so reprehensible that any attempt to refine them does a disservice to the bench and to our judicial system as a whole and it further diminishes the citizen’s trust in the judiciary beyond the damage that Santino has already inflicted. I simply cannot endorse the sanitized rendition of the facts with the omission of the actual published material along with the analysis that the majority adopts. Nevertheless, I support the JQC’s recommended sanction of removal, given the nature of the facts in this case and this Court’s precedent, which has long stated our intolerance for judicial candidate misconduct such as that at issue in the present case...
I refuse to endorse Santino’s “win-at-all-costs-and-pay-the-fine-later” strategy, especially in light of this Court’s past warnings and stated intolerance for the kinds of campaign
violations at issue here. By her own admission, if this Court simply imposed a fine in an attempt to evidence the enormity of Santino’s reprehensible behavior, it would be seen as “no big deal” in her eyes.
Justice Polston dissent and would impose a 90-day unpaid suspension.
In this matter involving serious campaign misrepresentations in violation of the Florida Code of Judicial Conduct, I would impose a very severe discipline of a 90-day suspension without pay, a $50,000 fine plus the cost of these proceedings, and a public reprimand. However, unlike the majority, I would not follow the JQC’s recommendation of removal because removal is not consistent with our precedent involving this type of serious campaign misconduct. Therefore, I respectfully dissent.
Thursday, October 18, 2018
The Florida Judicial Ethics Advisory Committee opines
Opinion Number: 2018-23
Date of Issue: September 27, 2018
1. Whether a judge may permit court cases to be filmed and televised on a weekly basis.
ANSWER: This is a matter of judicial administration, rather than judicial ethics.
2. Whether a judge may research, write, and appear in televised public service announcements which discuss issues surrounding family violence.
3. Whether a judge may be compensated for appearing in televised public service announcements.
The inquiring judge serves in a domestic violence division and asks whether the judge may allow the weekly televising of court proceedings in that division. In addition, the judge wants to research, write, and appear in televised public service announcements which explain the different forms of restraining orders available in Florida, the court procedures for obtaining restraining orders, inform the public about government sponsored resources for family violence issues, educate the public about the effects of exposure to family violence, and educate the public about evidentiary requirements for the introduction of common types of evidence. Finally, the judge asks whether the judge may receive compensation for creating and appearing in the public service announcements.
Tuesday, October 16, 2018
The New York Court of Appeals approved the removal from office of a judge.
Petitioner’s misconduct in her personal activities stemmed from her conviction for a misdemeanor offense of driving while intoxicated, for which she was sentenced to a one year conditional discharge (see 22 NYCRR 100.2 [A]). She was discourteous (see 22 NYCRR 100.4 [A] ), sought preferred treatment from the arresting officers (see 22 NYCRR 100.2 [C]), and violated the terms of her conditional discharge by ignoring orders of the court and leaving the country for an extended vacation without notice to the court or her lawyer (see 22 NYCRR 100.2 [A]). After a hearing on her second violation of her conditional discharge, petitioner’s conditional discharge was revoked, and she was re-sentenced to 60 days incarceration and three years’ probation.
Petitioner also violated the Rules of Judicial Conduct in the course of exercising her judicial duties when she failed to disqualify herself from presiding over the arraignment of a former client and attempted to exercise her discretion to have his case transferred in a manner which she thought might benefit him (see 22 NYCRR 100.3 [E]  [a] [i]). On other occasions, petitioner made discourteous, insensitive, and undignified comments before counsel and litigants in court (see 22 NYCRR 100.3 [B] ).
Attitude was an issue
Given petitioner’s apparent lack of insight into the gravity and impact of her behavior on both public perception of her fitness to perform her duties and on the judiciary overall, we conclude that any rupture in the public’s confidence cannot be repaired.
Democrat & Chronicle reported that she was recently indicted on weapons charges. (Mike Frisch)
Sunday, October 14, 2018
The Ohio Supreme Court is being asked to issue a public reprimand to Mahoning County Probate Court Judge Robert Rusu for violating the rules of conduct established for members of the legal profession.
The Ohio Board of Professional Conduct is recommending the reprimand after deciding that Judge Rusu was in violation of a rule that mandates that he acts in a manner promoting public confidence in the independence, integrity, and impartiality of judges.
The recommendation came following a complaint filed with the Ohio Supreme Court alleging that after taking over as county Probate Judge, he presided over 185 cases in which he represented clients while he was still an attorney with the law firm of Lane & Rusu Company. After becoming a judge, Rusu sold his partnership interest in the law firm.
Judge Rusu's decisions in those cases including appointing fiduciaries, approving legal fees for his own work (or his previous law firm), approving guardian fees, settlements, addressing cases with delinquencies, approving magistrate decisions, and waiving guardianship matters.
In a previous statement, Judge Rusu explained that he handled more than 1,300 cases during his 23 years as a probate attorney and that some of those cases are still pending.
Rusu said that he believed that some of those cases he heard after being appointed as a judge in July 2014 were not matters of controversy and did not require him to disqualify himself from presiding over the case.
In its findings, the Board of Professional Conduct said that Rusu has accepted responsibility for his actions, has no prior disciplinary record, and was not motivated by selfishness or dishonesty.
Rusu was appointed to the Probate Court position in 2014 by Governor John Kasich, after the conviction of former Judge Mark Belinky.
Rusu was then elected that same year.
Thursday, October 4, 2018
A new opinion from the South Carolina Judicial Ethics Advisory Committee
OPINION NO. 12 - 2018
RE: Propriety of a full-time municipal judge allowing the judge’s residence to be featured in a tour of homes.
A full-time municipal judge seeks an opinion regarding the use of the judge’s residence in a tour of homes. The local Symphony Guild presents a Holiday Tour of Homes each December as a fund raiser. The Guild expects to sell several hundred tickets (the judge would not have to sell any tickets herself or himself). The judge and the judge’s spouse reside in a condominium in the revitalized downtown area and the Guild has asked to showcase their residential property on the tour. The Guild produces a brochure that showcases the homes on the tour. The judge inquires as to whether the judge may: 1) consent to the use of their home; 2) be in the home during the tour; and 3) consent to the judge’s name being listed along with the judge’s spouse’s name in the brochure.
A municipal judge may allow his or her property to be featured in a tour of homes provided that the judge’s title is not used in any materials publicizing the event.
Thursday, September 27, 2018
On September 17, 2016, Judge Tilney's wife passed away after a long illness.
Judge Tilney was apprised by the Commission in August 2018 that it was investigating a complaint against him, alleging that, at various times in 2017, he had committed misconduct both on and off the bench, including allegations that:
A. he made a culturally insensitive comment to a defendant at sentencing,
B. he yelled at his co-judge from the bench in a denigrating manner using vulgarity and
C. he posted racially offensive material in the office area of the courthouse.
Niagara Gazette reported on the removal.
Tuesday, September 25, 2018
AHAM reported on charges
Manchester Town judge who ordered people to pay up for traffic and other infractions has been indicted for stealing that money.
13WHAM News had exclusive camera access to the courtroom where we learned the alleged theft is three times higher than first reported.
Prosecutors say Judge Erika Martin pocketed the money beginning the very first month as her swearing in - which was January 2016. Additional thefts happened through December of that year, prosecutors said.
The money came from traffic fines and other court surcharges. Prosecutors say the thefts totaled $9,000.
Judge Martin pleaded not guilty to a single count of three-degree grand larceny. Her attorney said she had no intention of taking a plea deal or pleading guilty.
"This case is going to be wrought with book keeping errors," said defense attorney Jason Housel. He contends the town used a flawed process for collecting, handling and depositing the cash.
"This isn't a situation where Ms. Martin is a bank teller taking in people's money and depositing it into a bank account," Housel said. "I don't think there was an adequate investigation into the other people who may have had their hands on these funds."
District Attorney Tantillo would not discuss the evidence other than to say it was sufficient enough to get an indictment.
In granting cameras in the courtroom, Ontario County Judge William Kocher overrode objections by the defense that this case is about a small town and the presence of the media would make it difficult to get an impartial jury. The defense also indicated they may seek a change of venue.
13WHAM News fought for access because Judge Martin is a public figure who was elected into a position of public trust.
"It's always troubling when you have an allegation against someone in a position of responsibility like this because we all rely on these people to do the job in the right way," said Tantillo.
Martin is the first woman justice to serve in Manchester, Ontario County. She is a former probation officer. She is one of two justices and has been relieved of her duties pending the outcome of the case.
Martin is scheduled to return to court in December.
Wednesday, September 19, 2018
A new opinion of the Florida Judicial Ethics Advisory Committee
Opinion Number: 2018-22
Date of Issue: September 12, 2018
Do the Canons of Judicial Ethics require that a judge automatically recuse or disqualify himself/herself without request when a close relative and that relative’s company are represented by a law firm whose lawyers have unrelated cases pending before the judge.
The inquiring judge’s spouse owns a construction company that is represented by a large law firm with many departments. The firm currently has cases pending before the inquiring judge; however, none of the lawyers representing the company and the judge’s spouse appears before the inquiring judge. The inquiring judge is aware that disclosure of the firm’s relationship with the judge’s spouse is required. What the judge is unsure of is whether there is a bright line rule requiring automatic disqualification.
On many occasions this committee has recommended that judges disclose relationships that might call into question their ability to act impartially and without bias. However, there have been only a few circumstances where we have suggested that disqualification is automatically required as a bright line rule. For example, we have opined that a judge who draws an opponent should automatically disqualify himself or herself in cases that directly involve that opponent. Fla. JEAC Op. 84-12. We have said that a sitting judge who intends to seek re-election should automatically disqualify from presiding over cases in which the law partner of an attorney who has qualified to run against the judge. Fla. JEAC Op. 11-08. We have opined that automatic disqualification is appropriate in all cases involving a law firm that currently represents the judge. Fla. JEAC Op. 99-13. Finally, this Committee has consistently opined that disqualification is automatically required in any case involving a law firm if a close family member is a lawyer with that firm. See Fla. JEAC Ops. 17-20, 12-32, 06-26, 98-20 and 84-24.
For a time, this committee was of the opinion that almost any employment of a relative by a law firm was a basis for the automatic disqualification of the judge.1 We later recognized that a bright line rule requiring automatic disqualifications in “all cases involving the employment of a judge’s relative by a law firm” was misplaced and we receded from that position. Fla. JEAC Op. 07-16. We acknowledged that our prior opinions disregarded the Commentary to Canon 3E(1)(d) which states:
The fact that a lawyer in a proceeding is affiliated with a law firm with which a relative of the judge is affiliated does not of itself disqualify the judge. Under appropriate circumstances, the fact that the judge’s impartiality might reasonably be questioned under Section 3E(1), or that the relative is known by the judge to have an interest in the law firm that could be substantially affected by the outcome of the proceeding under Section 3E(1)(d)(iii) may require the judge’s disqualification.
Instead, we concluded that “issues of disqualification involving law firms employing relatives of a judge should be resolved on a case-by-case basis with careful consideration given to the relationship between the relative and the law firm.” Fla. JEAC Op. 07-16.
The issue presented here does not involve the relative of a judge working as an employee of a law firm that has cases pending before the judge. Nor does it involve a firm that controls the income and financial interest of that relative. Here, the judge’s spouse is the employer and the law firm is the employee. The positions of power are reversed and the risk of the relative’s “interest in the law firm [being] substantially affected by the outcome” of any proceeding pending before the judge is either de minimus or nonexistent. See Canon 3E(1)(d). Instead, the incentive to make sure the firm does well for the client rests with the employee/law firm and not with the employer/client or the judge’s spouse of the employer/client.
In Fla. JEAC Op. 17-03 the inquiring judge presided in criminal court. The judge’s spouse was an attorney who had a civil practice and who, from time to time, received referrals from lawyers who appeared before the judge. The judge wanted to know if disqualification was automatically required from any case of any lawyer who had referred a case to the judge’s spouse. We opined that the judge was not required to disqualify. We reasoned that this was not a circumstance where the judge’s impartiality might reasonably be questioned because the spouse’s relationship with the referring attorneys was a “business relationship.” Id. We acknowledged the potential for retaliation against the judge’s spouse by refusing to refer business and the incentive for the judge to “lean in favor” of the referring attorneys to prevent retaliation. Id. None-the-less we concluded that although disclosure was required “recusal need not automatically follow.” Id.
In Fla. JEAC Op. 05-06 the judge’s spouse owned an “S Corporation” chartering sailboats. The boats were docked at a marina owned by a local attorney. The attorney’s associates occasionally appear before the judge. The judge had no individual interest in the corporation and did not participate in corporate decisions. The judge inquired as to whether automatic disqualification was required in all cases handled by lawyers in the firm. We answered that question in the negative. We found that the success of the attorney’s practice “was immaterial” to the business relationship between the attorney and the spouse. Id. We concluded that if “there is any basis for concern, it stems from a perception that the attorney could retaliate against the spouse’s business as a result of adverse rulings by the judge, or that the judge would lean in the attorney’s favor to prevent this from happening.” Id. We counseled the inquiring judge that in analyzing whether he or she should choose to disqualify, the judge should consider the significance of the business relationship. That consideration includes:
[The] length of time the business relationship has existed, whether the relationship is one of unusual value to the judge’s spouse, whether the attorney takes an active role in the business, whether and how frequently the attorney has face-to-face dealings with the spouse, and whether the attorney and the spouse (as well as the judge) share other professional or personal relationships.
We left it up to the inquiring judge to determine whether disqualification was appropriate even though it was not automatically required.
Finally, in Sands Pointe Ocean Beach Resort Condo. Ass'n, Inc. v. Aelion, 43 Fla. L. Weekly D1283 (Fla. 3d DCA June 6, 2018) a member of a large law firm declared his candidacy to unseat a sitting judge. The firm had as many as twenty-six cases pending before the judge though none of the cases were being handled by the candidate for office. The firm sought to disqualify the judge from all of the cases pending before the court arguing that disqualification was required due to the “‘inherent prejudice or bias by the Incumbent Judge against the movant represented by the Law Firm and the Law Firm itself.” Id. at 2. The judge denied the motion to disqualify and the firm and its clients sought relief in the appellate courts. The appellate court affirmed the trial court’s denial of the motion to disqualify. Among the reason for denying the petition for certiorari, the Third District observed that the “law presumes ‘that a judge will remain impartial . . .” Id. at. 3. See also State ex rel. Aguiar v. Chappell, 344 So. 2d 925, 926 (Fla. 3d DCA 1977) (“[T]he impartiality of the trial judge must be beyond question, for justice presumes an impartial judge.”). The court stated that “a motion to disqualify will not be legally sufficient unless the movant overcomes the presumption of impartiality.” The court rejected the argument that “inherent prejudice” existed based solely upon an “attorney’s mere association” with a candidate employed by a statewide law firm. Sands Pointe at 3. More was required to overcome the presumption of impartiality and require disqualification. We do not believe that the mere association of a judge’s spouse with a law firm by employing that firm to handle business matters unrelated to any proceeding pending before the judge defeats the presumption of impartiality. Automatic disqualification from all unrelated cases involving that firm is not required.
In opining here that the inquiring judge is not required to automatically disqualify himself or herself based upon the facts presented here, we do not mean to suggest that the judge is not required to, or should not consider a properly filed Motion to Disqualify on the merits. Canon 3E(1) of the Florida Code of Judicial Conduct states that a judge should disqualify himself or herself in a proceeding “in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where (a) the judge has a personal bias or prejudice concerning a party or a party’s lawyer or personal knowledge of disputed evidentiary facts concerning the proceeding.”
Thursday, September 6, 2018
The Florida Supreme Court has removed a circuit court judge from office
Judge DuPont was elected to the Seventh Circuit bench in 2010. At the time, he was thirty-eight years old and had six years of legal experience.
Case related misconduct
In April 2011, approximately four months into his first term, Judge DuPont presided over a hearing involving support of a minor child. When Judge DuPont questioned the absence of a certificate for successful completion of a parenting class, the husband explained that he did not take the class because he lacked the necessary funds. Judge DuPont then ordered his bailiff to search the husband for money. The search yielded $180, which the man claimed he was holding for someone else. Judge DuPont immediately turned the $180 over to the wife, ordering it credited to outstanding child support.
The court-ordered search was reported by law enforcement officers to Judge Terrill J. LaRue, then administrative judge for the Seventh Circuit. Judge LaRue thought that Judge DuPont had simply made a rookie mistake. He explained to Judge DuPont that he had employed “a very poor procedure” which should not be used again. Judge LaRue was taken aback when Judge DuPont insisted, “I can do that” and “we do that all the time in St. Johns County.”
He hired an opposition research team to trash his 2016 opponent
DuPont’s campaign website listed “imposter information,” suggesting Anthony was using “aliases.” It connected Anthony’s name change to “HideYourPast.com,” insinuating that Anthony had secrets in his past that he sought to conceal. It indicated that Anthony had received three parking tickets for parking in a handicapped zone, with associated “booking dates,” suggesting arrests when there were none. As “Possible Matching Arrest Records for Family/Known Associate,” the website listed three arrest records for Andrea Anthony and twenty one arrest records for Elizabeth Anthony, the candidate’s then-twenty-one-year-old daughter. Neither had ever been arrested. Elizabeth is a second lieutenant serving with the Army Corps Reserves, and, at the time the information was posted on Judge DuPont’s campaign website, was enrolled in veterinary school in Gainesville, Florida.
Judge DuPont committed egregious misconduct during his campaign to attain his office. Under these circumstances, we cannot allow Judge DuPont to serve the term of his judgeship. Based on the misrepresentations Judge DuPont made during his campaign to attain his office as well as the other instances of misconduct during his time in office, we conclude that Judge DuPont has demonstrated a present unfitness to hold office and approve the recommended discipline of removal from office.
Tuesday, August 28, 2018
The most recent opinion from the Florida Judicial Ethics Advisory Committee
May a judicial candidate use or re-publish a news media report on the opponent's admittedly inappropriate relationship with a legal client, which occurred during the representation?
ANSWER: Generally, it would not be a per se violation of the Code of Judicial Conduct to use or re-publish negative or critical news reports or articles on the opponent, so long as the mandates of Canon 7 are followed.
The inquirer is a judicial candidate. The news media has published reports that an opponent had, several years ago, been involved in an inappropriate and unprofessional relationship with one of the opponent's then-current legal clients. The opponent has reportedly confirmed that the inappropriate relationship existed. The inquirer wishes to use or re-publish these reports during the campaign and asks if this is permissible.
The Judicial Ethics Advisory Committee has previously dealt with the issue presented herein: may a candidate use or reproduce negative or critical reports on opponents in their advertisements or campaign communications. We have consistently opined that we will not vet candidates' advertisements. Among other reasons, we have ascribed to that position because we have no way of discerning or verifying whether the facts alleged are accurate. Our opinions, therefore, have generally set out the guidelines which Canon 7 mandates must be followed, in order for the candidates' communications and ads to not violate the Code. In Fla. JEAC Op. 98-27 we opined:
"It would not be a violation per se of the Code for a judicial candidate to reproduce negative articles about the candidate's opponents, but the candidate must follow the mandates of Canon 7. This Committee's Opinions in 94-16 and 94-35 are instructive. In Opinion 94-16, the Committee stated: 'The code does not directly address what is ethically acceptable when a candidate wishes to criticize a political opponent. Our Committee finds that in general it would be proper to criticize a political opponent when the criticism is truthful, pertinent and material to judicial office ...’”
"a candidate may criticize an opponent if it is fair and truthful; is pertinent and material to the judicial office; is based on factual, not personal, grounds; is not about a pending case; and does not bring the candidate's impartiality or that of the judiciary into question...Canon 7A(3)(d)(iii) [now Canon 7A(3)(e)(ii)]…”
Therefore, the inquirer is cautioned to follow the mandates of Canon 7 in re-publishing and using the media reports.
Wednesday, August 22, 2018
An agreed public reprimand has been imposed by the South Carolina Supreme Court on a probate judge who has resigned
Two complaints against respondent relate to him calling court personnel "heifers" and "DW" (double wide). Respondent admits making the inappropriate and unprofessional comments, but maintains he was joking when the comments were made. The Agreement also references "pranks and jokes" respondent instigated and participated in during working hours and which he admits were unprofessional and discourteous. However, no details are provided regarding the "pranks and jokes" and it is not clear if this is simply a further reference to the inappropriate comments.
A second complaint stems from respondent using the probate court account for personal financial dealings. Respondent admits he had repairs done to his roof and received two checks from his insurance company to cover the cost. Because respondent's ex-wife's name remained on the deed, the insurance checks were made out to both respondent and his ex-wife. The ex-wife is a former associate probate judge who previously worked for respondent, but lived in Ohio at the time of these events. Respondent asked his stepson to secure the ex-wife's signature on the checks, which he did. When the bank would not accept the checks for deposit, the stepson took the checks to respondent who, in turn, deposited them in the probate court account and wrote a check from that account to the stepson in the amount of the insurance proceeds. The stepson did not use the funds to pay the roofing company and, instead, used the money for his own benefit. Respondent learned of the stepson's actions upon being served with a summons and complaint by the roofing company. Respondent has filed suit against his stepson to recover the money.
He had a prior record of two letters of caution and a confidential admonition. (Mike Frisch)
Monday, August 13, 2018
The Indiana Supreme Court reprimanded a judge
Judge Johanningsmeier has been judge of Knox Superior Court 2 since January 2015. He is close friends with B.K., who received a speeding ticket in April 2015.
On June 18, 2015—shortly after vacationing with Judge Johanningsmeier —B.K. failed to appear in Bicknell City Court on the ticket, so default judgment was entered and his license was suspended for failure to appear. On June 30, 2015, B.K. filed a petition for a trial de novo in Judge Johanningsmeier’s court. Judge Johanningsmeier granted the motion the same day and reinstated B.K.’s license, without giving the prosecutor opportunity to respond (thus violating Trial De Novo Rule 2(E)) or disclosing the conflict.
The situation came to the Commission’s attention and resulted in a March 9, 2016 private caution letter advising Judge Johanningsmeier that his close friendship with B.K. would cause a reasonable person to question his impartiality under Indiana Judicial Conduct Rule 2.11(A). Despite the caution, Judge Johanningsmeier did not recuse and did not set the matter for hearing. The case remained in limbo until early 2017.
Meanwhile, shortly before Christmas 2016 and while the case was still pending, Judge Johanningsmeier posted on Facebook a photo of himself, his sister, and B.K. at a party in the Judge’s home. The photo, which B.K. “liked,” was visible to the public and showed that Judge Johanningsmeier and B.K. were close friends.
On March 6, 2017—almost a year after Judge Johanningsmeier’s private caution letter—the prosecutor moved for bench trial in B.K.’s case. Instead of recusing, Judge Johanningsmeier set the motion for hearing on March 20, 2017. At the hearing, he stated on the record that the case involved “a friend of mine” and “I was hoping we could just get the State to dismiss it.” The prosecutor immediately orally moved to dismiss the case, and Judge Johanningsmeier granted the motion.
Wednesday, August 1, 2018
The Maryland Court of Appeals has issued its opinion confirming that a district court judge did not commit judicial misconduct
Judge Reese has served as an Associate Judge of the District Court of Maryland, District Ten, which includes both Howard and Carroll counties, since 2006. On July 31, 2015, the Women’s Law Center of Maryland (“the Women’s Law Center”) filed a complaint against Judge Reese with the Maryland Commission on Judicial Disabilities (“the Commission”). The Women’s Law Center is a statewide non-profit organization that has operated the Protective Order Representation and Advocacy Project, a program providing direct legal services for victims of domestic violence, for over twenty years. The crux of the Women’s Law Center complaint involves Judge Reese’s conduct overseeing protective and peace orders, and cites three cases for reference: Lauren M. Lewis v. Richelieu W. James (Case No. 1002SP004962014), Patricia Stein v. Benton Stephen Lecuyer (Case No.1002SP001402015), and Biden v. Kramer (Case No. 1002SP005512014). In addition to the Women’s Law Center complaint, two of the individuals referenced therein, Lauren M. Lewis and Patricia Stein, also filed complaints against Judge Reese. Although the complete transcripts for the Lewis and Stein matters were accepted into evidence as joint exhibits before the Commission, the Lewis matter was dismissed by the Commission for insufficient evidence.
The court found no sanctionable conduct
Although the Commission and the Women’s Law Center have taken the position that Judge Reese committed sanctionable conduct because she did not, in their estimation, undertake a more thorough approach in developing the factual scenario in the peace order matter, we conclude otherwise. Judge Reese’s ruling reflects that she appreciated the factual circumstances that were presented to her and applied the law to the facts in a reasonable fashion, thereby complying with Rule 18-101.1. Further, Judge Reese also complied with Rule 18-102.5(a) as reflected by her performance of her judicial duties that belies any rational finding of a lack of competence or diligence on her part.
A judge must be able to exercise the appropriate discretion that reflects an appreciation of the facts presented, an understanding of the law that applies, and a reasonable conclusion based upon an analysis of the law’s application to those facts. Judge Reese carefully considered the testimony of seventeen year old Ms. Hiltz, and her grandmother, Ms. Stein, both of which provided the factual predicate for the petition for a peace order against Mr. Lecuyer, the ex-boyfriend of Ms. Hiltz. After considering the testimony and evidence presented, and ascertaining through questioning that similar conduct had not occurred previously, Judge Reese found insufficient evidence that the abuse was likely to occur in the future, and denied the petition. Reasonable minds could differ on the applicable law, such error does not constitute sanctionable conduct. whether the petition for a peace order should have been granted. However, if Judge Reese erred in her ultimate decision, appreciation of the factual circumstances and the applicable law, such error does not constitute sanctionable conduct.
A proper exercise of discretion involves considering the particular circumstances and exercising sound judgment. 101 Geneva LLC v. Wynn, 435 Md. 233, 241, 77 A.3d 1064, 1069 (2013). Although reasonable minds could differ regarding the merits of Judge Reese’s decisions in the cases before her, those decisions were rooted in consideration of the law and the factual circumstances. In this proceeding, we examine whether Judge Reese’s actions constituted sanctionable conduct under our rules and the circumstances presented. Our review of the record persuades us that they did not.
Judge Watts concurred
the Commission found that Judge Reese violated Maryland Rules 18-101 and 18-102.5(a), because, during a peace order hearing, Judge Reese asked three questions of the petitioner; the interaction took nineteen seconds; and the entire peace order hearing occurred in three minutes. This is the sole rationale given by the Commission in its findings for its decision. Against this backdrop, I agree with the Majority that Judge Reese’s conduct did not rise to the level of violating Maryland Rules 18-101.1 and 18- 102.5(a)...
To find that Judge Reese’s conduct violated Maryland Rule 18-102.5(a) based only on the brevity of the hearing would intrude on a judge’s ability to determine when or at what point there is available sufficient information for the judge to rule on a specific issue. Neither the Commission nor this Court should dictate that a judge must ask a requisite number of questions or spend a designated period of time in evaluating motions or objections, or ruling on any matter before the judge. It is inherent in the judicial decisionmaking process that a judge must have the freedom to determine when the judge has sufficient information to rule—without the judge being subject to a disciplinary proceeding alleging a lack of diligence or competence. To find sanctionable conduct in this case would result in any judge, who asked few questions or perhaps even issued an incomplete ruling, being subject to the disciplinary process for an alleged lack of diligence or competence.
Judge Watts would further find error in the exclusion of the proposed expert testimony of three judges, an issue the court did not decide in light of its ultimate conclusion. (Mike Frisch)
Thursday, July 26, 2018
The Mississippi Supreme Court has reprimanded a judge who stipulated
Judge Curry “has signed warrants based on affidavits sworn by her relatives . . . .” After signing the warrants, Judge Curry would not set bond even though the charges were misdemeanors. Judge Curry would recuse herself from the case, citing her relationship to the affiants.
Judge Curry “disposed of Protection from Domestic Abuse Petitions, in violation of the Mississippi Protection From Domestic Abuse Act . . . [by] display[ing] a pattern of dismissing Petition for Order of Protection From Domestic Abuse without having the statutorily mandated hearing.”
Judge Curry “presided over the Initial Appearance of . . . a relative concerning his Possession of a Controlled Substance charge” setting the bond at $50,000. However, later, the relative filed “what purports to be a Motion for Bond Reduction. The Motion for Bond Reduction is blank and it does not state any reason for [the relative]’s bond to be reduced[,]” and only contains the relative’s signature. Yet, Judge Curry granted the reduction and reduced bond to $5,000.
Judge Curry waived an expungement fee and “directed the clerks to void the receipts in [the] matter and to refund . . . the money.”
Judge Curry, “after being informed of th[e instant matter] and the identity of the complainant[,] submitted a letter to the Claiborne County Board of Supervisors, requesting that they transfer the complainant from her position as Justice Court Clerk.” Judge Curry cited the filing of the complaint as a reason for removal.
The court found a pattern of misconduct
While Judge Curry has not been sanctioned for misconduct before, her misconduct spans numerous cases. Judge Curry’s conduct evidences a pattern, particularly as it relates to her participation in multiple, different cases involving her relatives and also her dismissals of three matters without a statutorily mandated hearing or order, involving petitioners’ requested orders of protection for domestic abuse. The Court has held on numerous occasions that multiple incidents of improper behavior constitute a pattern.
Judge Curry shall appear on the first day of the next term of the Circuit Court of Claiborne County in which a jury venire is present, after the mandate in the instant case has issued, to be reprimanded by the presiding judge.