Wednesday, September 18, 2019

Judge Canned Over Facebook Share

The New York Commission on Judicial Conduct announces  the resignation of a non-attorney town court justice

Altona Town Court Justice Kyle R. Canning (Clinton County) has resigned while under formal charges by the New York State Commission on Judicial Conduct for sharing an image on his Facebook account that conveyed racial and/or political bias. Judge Canning, who resigned from office effective June 27, 2019, has agreed never to seek or accept judicial office at any time in the future. The Commission accepted a stipulation to that effect signed by the judge and the Commission’s Administrator and closed its formal proceeding.

Judge Canning was served with a Formal Written Complaint dated May 7, 2019, containing one charge, alleging that he posted an image of a noose to his Facebook account, with the annotation in white capital letters, “IF WE WANT TO MAKE AMERICA GREAT AGAIN WE WILL HAVE TO MAKE EVIL PEOPLE FEAR PUNISHMENT AGAIN.”

Judge Canning waived the statutory provision of confidentiality applicable to Commission proceedings, to the limited extent that the stipulation and Commission’s order accepting it and closing the case would be public.

Judge Canning, who is not an attorney, had been a Justice of the Altona Town Court since 2018. His current term would have expired on December 31, 2021.

The stipulation is linked here.

From his letter to the Town Supervisor

It is with a sense of despair that I find myself writing this letter. As you are aware, the Commission of Judicial Conduct has filed a formal written complaint against me. They have presented me with several different options in resolving what they claim to be a serious offense. I feel as though, due to my current financial situation and obligations to my family, I am being coerced into resigning. So effective immediately I will be vacating the office of Town Justice and I offer this letter of resignation to you for your official records. It has been a pleasure serving this town as one of its justices, and I will greatly miss my duties. l do formally apologize for the inconvenience and hardship that I have imposed on my co-justice and the Town of Altona.

(Mike Frisch)

September 18, 2019 in Judicial Ethics and the Courts | Permalink | Comments (0)

Friday, August 23, 2019

No Magistrate Limbaugh In South Carolina

A no-no on Talk Radio for magistrates from the South Carolina Advisory Committee on Standards of Judicial Conduct


OPINION NO. 10 - 2019

RE: Propriety of magistrate judges hosting a radio talk show.

FACTS

Several magistrate judges wish to host a radio talk show. The judges would not be paid for their involvement. The show will be taped and edited, not live, and the judges will control the topics and narratives. The judges intend to include topics on sports law, new laws, amendments to existing laws, opinions from the Supreme Court, and court procedures, such as how to file a suit in magistrate’s court. The judges will not take questions from live callers. The judges inquire as to the propriety of such a show.

CONCLUSION

A magistrate judge should not host a radio talk show.

OPINION

Appellate Court Rule 501 SCACR, Canon 4, does allow a judge to be involved in certain community activities and is not intended to totally isolate a judge from the society in which the judge lives and works. Canon 4 permits a judge to write, lecture, teach and speak on non-legal subjects only if such activities do not demean the judicial office or interfere with the performance of his judicial duties. See Canons 4A and 4B (emphasis added). Additionally, Canon 2B, in addressing the appearance of impropriety of a judge's activities, provides that a judge should: not lend the prestige of his office to advance the private interest of others; nor should he convey or permit others to convey the impression that they are in a special position to influence him.

In associating with a radio talk show on a regular basis, the judge(s) would clearly lend the prestige of judicial office to the advancement of the radio station, in an area where the public perceives the judges to be experts. Regular appearances on a talk show (as opposed to a bar association or other organization dedicated to the improvement of the law) could detract from the dignity of judicial office, in violation of Canon 4A. Moreover, a judge cannot publicly discuss litigation he has handled, or that some other judge may have handled. Thus, a judge’s talk show could place an undue and unnecessary strain on other judges by having to decide an issue on which the judge had already publicly discussed.

For the foregoing reasons, this Committee finds it improper for a judge or judges to host a radio talk show.

(Mike Frisch)

August 23, 2019 in Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, August 13, 2019

Resigned

A stipulated sanction of resignation from the judiciary accepted by the New York Commission on Judicial Conduct

Respondent was served with a Formal Written Complaint dated February 21, 2019, containing two charges. Charge I alleged that Respondent took judicial action in a criminal case by signing an arrest warrant for the defendant ("husband") and an order of protection on behalf of the complaining witness (''wife"), notwithstanding that Respondent was representing the wife in a related divorce action against the husband. Charge II alleged that Respondent continued to represent the wife in the divorce action after he took judicial action in the related criminal case.

(Mike Frisch)

August 13, 2019 in Judicial Ethics and the Courts | Permalink | Comments (0)

Lest Ye Be Judged

Dan Trevas reports on a decision issued today by the Ohio Supreme Court

The Ohio Supreme Court today suspended former Lorain County Common Pleas Court Judge James M. Burge from practicing law. The suspension was based on his criminal convictions related to his failure to disclose his interest in an office building on his financial disclosure forms, assigning paid legal work to attorneys who rented office space from him, and for other acts in office, including sarcastically threatening to beat a defendant and to have another defendant shot by a deputy sheriff.

A divided Supreme Court suspended Burge for one year with sixth months stayed. He was given credit for the approximately three months and three weeks he served under an interim suspension issued in April 2015 after his conviction for tampering with records and falsification.

The Court’s per curiam opinion stated the sanction was appropriate for a number of reasons, including that his misconduct occurred while he was judge and, since he has resigned from the bench, “his misconduct is unlikely to recur.”

Justices Judith L. French, R. Patrick DeWine, Michael P. Donnelly, and Melody J. Stewart joined the opinion.

Chief Justice Maureen O’Connor and Justice Patrick F. Fischer stated they would not award Burge credit for the time served under the interim suspension.

Justice Sharon L. Kennedy dissented, stating that a two-year suspension, with one year stayed, was more appropriate.

Judge Conceals Financial Interest in Building Where Attorneys Rent Space
Burge’s criminal convictions stem from his failure to report on annual financial disclosure statements his interest in Whiteacre North, a company whose sole asset was a building located in downtown Lorain.

Burge and his wife became the primary owners of Whiteacre in 1998. When Burge first took office in 2007, the Whiteacre shareholders assigned their interest in the property to a couple who agreed to pay $70,000 to the shareholders and assume the debt on the property owed to a local bank. The assignment agreement fell through and Burge remained personally responsible for the bank loan. He did not list on his financial disclosure form the bank as a creditor, Whiteacre as a business that he and his wife operated, or his ownership interest in the building in downtown Lorain.

A grand jury indicted Burge in September 2014 on 12 counts of criminal conduct, and a jury in April 2015 found him guilty of three misdemeanor falsification charges and three felony tampering charges. A visiting judge dismissed the remaining charges, and a month later reduced the felony charges to misdemeanors. Burge resigned from the bench and paid a $3,000 fine.

The Supreme Court imposed an interim suspension in April 2015 based on the convictions, but reinstated Burge in August 2015 after being notified the felony tampering charges were converted to misdemeanors.

During the time he owned the building, lawyers who rented space there appeared in Burge’s court. He appointed five of those attorneys to represent indigent defendants in cases before him, and awarded court-appointed fees to two lawyers who were Whiteacre tenants. Burge did not recuse himself in the cases or disclose the relationships to prosecutors.

Behavior on Bench Leads to Additional Charges
Based on the criminal conviction and additional complaints about Burge’s behavior on the bench, the Office of Disciplinary Counsel charged him in 2018 with several counts of violating the rules governing the conduct of Ohio judges.

In 2012, Burge presided over the bench trial of Samuel Nieves, who was indicted on rape and gross sexual imposition charges involving a 14-year-old girl. At the close of the prosecutor’s case, Burge acquitted Nieves on the rape charge, over the objection of the prosecutor, but found him guilty of the gross sexual imposition count. He sentenced Nieves to 17 months in prison, but released him less than four months into his prison term. The prosecutor complained at the time of the rape acquittal that Burge was disregarding precedent. During disciplinary proceedings, Burge acknowledged that he was aware, but did not follow, the established precedent.

Burge also admitted that he made disparaging remarks from the bench to defendants. In one case, he told a man he was sending to a community-based correctional facility that he “would have paid 50 bucks to give you a beating before you went.”

In another case involving a man convicted of possessing stolen property, Burge said to the defendant, “Now if I were to believe you were that stupid, James, I would just have Deputy Motelewski shoot you right now, because I know you’re not going to make it through life.”

Judge Pens Disparaging Remark about Lawmaker
In 2011, Burge used his official court stationery to write to three state representatives about a bill introduced in the Ohio General Assembly by former Rep. Lynn Slaby, who previously served as a judge on the Ninth District Court of Appeals. Burge characterized Slaby and his proposed legislation as “nothing more than the hobgoblin of a small-minded, mouth-breathing, Tea Party type whose political style and abilities uniquely qualify him to do nothing.”

Burge and the Disciplinary Counsel stipulated that his actions on the bench and the crimes violated a number of rules.

Court Agreed to Recommended Sanction
The Board of Professional Conduct recommended that Burge be suspended from the practice of law for one year with six months stayed. Burge did not object to the board’s recommended sanction, but requested that he be given credit for the time served in 2015 under the interim suspension.

The Court adopted the one year suspension with six months stayed provided Burge not commit further misconduct. A majority of the court also found that he should receive credit for the time served. The Court’s opinion noted the board found Burge’s circumstances similar to that of former Bedford Municipal Court Judge Harry J. Jacob who was suspended for two years with one year stayed. Jacob was convicted of five misdemeanors related to soliciting prostitution and amending charges in favor of a defendant without the prosecutor’s presence or consent. (See Convicted for Solicitation, Former Municipal Court Judge Suspended from Practice of Law.)

The majority found that Burge deserves a lesser sanction “because unlike Jacob, Burge fully acknowledged the wrongful nature of his conduct and showed genuine remorse for his wrongdoing.” The Court noted the primary purpose of judicial discipline is to protect the public, guarantee evenhanded administration of justice, and maintain and enhance public confidence in the integrity of the judiciary.

“All of Burge’s misconduct occurred during his time as a judge and was related to his judicial duties and responsibilities; since he resigned from the common pleas court following his criminal convictions, his misconduct is unlikely to recur,” the majority opinion stated.

Dissent Would Add More Time
Justice Kennedy, in her dissenting opinion, concluded that while some of Burge’s misconduct was similar to Jacob’s, Burge engaged in more misconduct than Jacob, and she would impose a two-year suspension, with one year stayed, similar to what Jacob received.

 Both Burge and Jacob were convicted of misdemeanors. Justice Kennedy noted the jury convicted Burge of three felonies but “only because the trial court failed to specify the appropriate level of offense in the jury-verdict forms that the felony tampering counts were reduced to misdemeanor convictions.” Also, while Jacob engaged in impropriety on the bench, Burge’s misconduct on the bench was broader in scope. And unlike Jacob, Burge engaged in financial misconduct, the opinion noted, as Burge financially benefitted from the lawyers who rented space in his office building. 

Justice Kennedy wrote that by imposing a one year suspension with six months stayed the majority focused mainly on Burge’s misdemeanor convictions and minimized his judicial misconduct because he resigned.

“This court has not previously minimized judicial misconduct because the respondent was no longer serving as a judge when we issued our judgment,” she wrote.

She further stated that all of Burge’s misconduct has had a profound effect on the integrity of the judiciary.

She reasoned that only by considering all of Burge’s misconduct was the primary purpose of judicial discipline satisfied— to protect the public, guarantee the evenhanded administration of justice, and maintain and enhance public confidence in the integrity of the judicial system.  Consequently, a two-year suspension with one year stayed “show[ed] that judges are held to the highest possible standards of ethical conduct and would restore integrity to the judiciary and the public’s confidence in it,” she wrote.

2018-1759. Disciplinary Counsel v. Burge, Slip Opinion No. 2019-Ohio-3205.

Coverage from Cincinnati.com. (Mike Frisch)

August 13, 2019 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, August 6, 2019

The Order Of The Silver Crescent

The South Carolina Advisory Committee on Standards of Judicial Conduct  opines

FACTS

The inquiring judge is a retired, but still active, circuit court judge. The county’s Chief Public Defender (“CPD”) is retiring and the inquiring judge has been asked to submit a letter recommending that the Governor award The Order of the Silver Crescent to the CPD. The inquiring judge has been personal friends with the CPD for over forty years, and the friendship began before the judge ascended to the bench and before the CPD occupied his current position. The two attend the same church, live in the same subdivision, and their spouses are friends. The judge would not be submitting the letter on judicial letterhead and would not reference the judge’s judicial position.

CONCLUSION

A retired circuit court judge may provide a letter recommending a retiring Chief Public Defender for an award (The Order of The Silver Crescent).

(Mike Frisch)

August 6, 2019 in Judicial Ethics and the Courts | Permalink | Comments (0)

Sunday, August 4, 2019

Injustice Of The Peace

The Louisiana Supreme Court disqualified a justice of the peace from exercising any judicial function.

The Advocate reported

A Baton Rouge judge on Friday denied bail for the local justice of the peace and former Baton Rouge police officer facing allegations of horrific domestic abuse that lasted more than a decade. 

Moses Evans, 55, was arrested earlier this month and accused of brutally abusing his now ex-girlfriend and her children, causing severe injuries and permanent disfigurement — until the woman ran from their shared house in July 2018. He's now being held without bond. 

Evans' arrest came after his ex-girlfriend reported to law enforcement last month that he had recently slapped and punched their two biological children during unsupervised visitation. A judge had awarded Evans joint custody of the children despite allegations having surfaced in multiple court filings several months earlier about his abusive treatment of his family members.

The mother said the number of times Evans had assaulted her throughout their relationship "is too many to count," according to court documents. She said the assaults involved him striking her with "any number of objects including rocks, flashlights, wrenches, screwdrivers, hammers, jumper cables, rakes, hoes and anything else that was within reach when he went into a rage."

She said Evans didn't let the children "go to school, socialize or nothing."

She asked the court to grant her sole custody in light of the allegations.

Evans denied the abuse, claiming his ex-girlfriend provided insufficient evidence and arguing she shouldn't be awarded sole custody, court documents show. He referred to having home-schooled the children. 

Evans was ultimately granted joint custody. He was allowed unsupervised visitation after completing anger management classes.

Now he's is being held without bond after a ruling Friday from 19th Judicial District Judge Bonnie Jackson, according to East Baton Rouge District Attorney Hillar Moore III. Jackson ruled Evans poses a potential threat to his family. 

Evans was elected justice of the peace as a Democrat in his north Baton Rouge district in 2008 and then reelected in 2014. His current term is set to expire in 2020. He retired from the Baton Rouge Police Department as a corporal in 1993.

(Mike Frisch)

August 4, 2019 in Judicial Ethics and the Courts | Permalink | Comments (0)

Sunday, July 28, 2019

Flirtatious Magistrate Charged

The Ohio Disciplinary Counsel has charged a Hamilton County magistrate with misconduct in connection with his presiding over a domestic violence civil protection order in which he allegedly became personally involved. 

He allegedly met with the victim in chambers and discussed a range of matters unrelated to the pending case. They also were allegedly together in the court's designated smoking area where he made "flirtatious" remarks about her appearance. They had lunch near the courthouse and he picked up the check.

When he then recused himself, he allegedly false claimed that his contacts were "inadvertent." 

She contacted him by text after the recusal and asked for a formal meeting; he responding that the request sounded ominous. 

He did not respond to later texts.

He was fired.

Charges linked here. (Mike Frisch)

July 28, 2019 in Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, July 18, 2019

Helping Out Draws Suspension Of Judge

A judicial sanction has been imposed by the Mississippi Supreme Court on a repeat offender judge.

We agree with the Commission [on Judicial Performance] that Judge Sutton’s conduct constituted misconduct. We disagree with the Commission’s imposition of sanctions. Instead, we order a public reprimand, fine Judge Sutton $500 and suspend Judge Sutton for thirty days without pay.

The judge stipulated to two counts of misconduct

On January 31, 2018, Investigator Nick Brown with the Hinds County Sheriff’s Department arrested and charged Amanda Howard with prostitution. Howard’s hearing was scheduled for February 22, 2018. The day after Howard’s arrest, Michael Liddell approached Judge Sutton in court and asked Judge Sutton if he could help Liddell with the charges pending against Howard. That afternoon, Judge Sutton called Investigator Brown and asked him if he could “help him out” on the prostitution charge against Howard because he knew her family. Investigator Brown told Judge Sutton that he would not “help him out” with the prostitution charge. That same day—February 1, 2018, Judge Sutton, sua sponte and without a hearing, remanded Howard’s prostitution charge to the file, subject to recall.

On June 26, 2018, Investigator Keith Burnett, with the Hinds County Sheriff’s Department, arrested Barry Jones and charged him with possession of marijuana. Jones’s mother, who is a parishioner at Fairfield Missionary Baptist Church where Judge Sutton serves as pastor, approached Judge Sutton and asked if he could help Jones. Judge Sutton called Investigator Burnett and inquired about Jones’s arrest and pending charges. Judge Sutton asked about the weight of the marijuana collected from Jones and whether the charge was a misdemeanor or felony. Investigator Burnett informed Judge Sutton that 35.2 grams of marijuana had been collected from Jones’s apartment and that he was charging Jones with “Possession of a Controlled Substance Felony.” The record is silent as to what Judge Sutton did with this information.

He violated several Canons of Judicial Conduct

Judge Sutton did not promote public confidence in the integrity and impartiality of the judiciary. His actions were also influenced by social relationships and conveyed the impression that those acquaintances were in a position to influence his actions as a judge. As to Count One, Liddell approached Judge Sutton in court to request his assistance with Howard’s charges. Judge Sutton should have immediately declined to assist Howard and informed Liddell that his request was improper because Judge Sutton was bound by his oath to be impartial. Also, while the telephone communication in Count Two was less public, Jones’s mother was left with the impression that Judge Sutton would help her son.

And

Judge Sutton’s intermingling of his role as pastor and justice court judge did not comport with Canon 4A when he agreed to contact Investigator Burnett about the charges against Jones.

Sanction

The Commission has issued cautionary letters to Judge Sutton five times: once in 2012, twice in 2016 and twice in 2017. In 2012, Judge Sutton failed to start court on time and treat the litigants and attorneys with the appropriate demeanor. In 2016, Judge Sutton failed to properly jail litigants in a contempt matter and failed to exhibit the appropriate judicial demeanor. In 2017, Judge Sutton twice failed to exhibit the appropriate judicial demeanor.

Also, the Commission has privately reprimanded Judge Sutton twice: once in 2005 and once in 2008. In 2005, Judge Sutton personally solicited funds for his reelection campaign. He entered into a memorandum of understanding with the Commission and received a private admonishment. In 2008, Judge Sutton engaged in improper ex parte communication. He entered into an agreed statement of facts and proposed recommendation with the Commission and received a private admonishment. The record is silent as to any details concerning this ex parte communication.

Last, in 2008, the Commission consolidated two formal complaints against Judge Sutton and submitted them to this Court. Sutton, 985 So. 2d at 324. There, this Court publicly reprimanded Judge Sutton and assessed costs of $1,900.89 against him for his misconduct in three cases. Id.

...Given Judge Sutton’s history with the Commission and his past sanctions for improper ex parte communication, we suspend Judge Sutton for thirty days without pay, in addition to the Commission’s recommended sanctions of a public reprimand and a $500 fine. Judge Sutton remanded a criminal charge to the files, engaged in multiple ex parte communications and left the public and the law-enforcement community with the impression that he was biased and was willing to act partially on behalf of certain litigants. Judge Sutton’s misconduct merits a thirty-day, unpaid suspension, a $500 fine and a public reprimand.

(Mike Frisch)

July 18, 2019 in Judicial Ethics and the Courts | Permalink | Comments (0)

Saturday, June 29, 2019

Court Of Last Resort

An opinion of the Florida Judicial Ethics Advisory Committee

Opinion Number: 2019-19
Date of Issue: June 25, 2019

ISSUES

May a judge accept a friend's offer of a free stay in a suite at a resort property, which suite has been provided to the friend by an attorneys' association holding a conference at the resort.

ANSWER: Yes.

FACTS

The inquiring judge and the judge's family have been offered the opportunity to join a friend, free of charge, for a stay at a popular resort. The friend is sufficiently close to the judge that Canon 3E of the Code of Judicial Conduct would disqualify the judge from hearing any cases in which the friend might be interested.

The judge's friend is the president of an association of attorneys who represent governmental entities. The association is holding a conference at an upscale resort property and the friend has been given a suite of rooms during the conference. He has invited the judge and the judge's family to stay with him and his family in the suite.

Reasoning

a  judge may accept a gift, bequest, favor or loan, pursuant to Canon 5D(5)(h) of the Code of Judicial Conduct, only if:

1. the donor is not a party or other person who has come or is likely to come or whose interests have come or are likely to come before the judge;

2. its value exceed (sic) $100, the judge reports it in the same manner as the judge reports compensation in Section 6B; and

3. the donor makes the presentation to an individual judge, rather that (sic) all the judges in the same area or court.

After analysis of all of the above factors, and consideration of who should be deemed the source of the gift, a majority of the committee concluded that, despite the involvement of the organization, the gift proposed is one from the judge's friend. The close relationship of the friend would prohibit him from appearing before the judge, bringing the gift within the exception contained in Canon 5D(5)(e), allowing the judge to accept the offer.

Even though the gift may properly be accepted, a number of the committee members felt that the judge should be reminded that some gifts, though acceptable, should perhaps be graciously declined. Present in a suite with the president of a partisan attorney's group, the judge could find himself or herself in the middle of a conversation that led to discussion of a case pending before the judge or about interests that might come before the judge. The possibility for such situations always exists, of course, but may be amplified in the setting in which the judge would be found. Other unanticipated situations could arise that would place the judge in an uncomfortable position. Further, the judge's presence at an exclusive resort, at no cost to the judge, could raise questions in the minds of parties unaware of the true nature of the gift and could provide ammunition for those seeking grounds to criticize the judge. The title of Canon 2 of the Code of Judicial Conduct states that a judge shall avoid the appearance of impropriety in all of the judge's activities. While a reasonable person with full knowledge of the details of the proposed gift would not find any appearance of impropriety in the gift, those without full knowledge or those with malicious intentions might state otherwise. Only the judge can make the final decision about whether the gift is worth the complications it might entail.

(Mike Frisch)

June 29, 2019 in Judicial Ethics and the Courts | Permalink | Comments (0)

Friday, June 28, 2019

"A Pattern Of Discourtesy And Uncontrollable Incivility"

The Maryland Court of Appeals has suspended a judge for misconduct described in the court's headnote

Having reviewed the record, the Court of Appeals held that, under the circumstances, the Maryland Commission on Judicial Disabilities’ conclusion that the Honorable Devy Patterson Russell committed sanctionable conduct was supported by clear and convincing evidence. From 2007-2015, Judge Russell failed to handle and process search warrant materials in a manner consistent with Maryland Rule 4-601 and internal courthouse procedures. Moreover, Judge Russell instructed a law clerk to destroy the warrant materials. In addition, she repeatedly yelled at court clerks and judges. She subjected court clerks to lineups when clerical mistakes were made, and on one occasion physically pushed a clerk. Judge Russell also repeatedly attempted to undermine the authority of the administrative judge of her court and judges delegated administrative duties.

Her conduct occurred in the courthouse and often in the public view. Furthermore, her conduct had sweeping effects on the courthouse to which she was assigned, fostering an uncomfortable, unprofessional, and tense work environment. Her conduct exhibited a pattern of discourtesy and uncontrollable incivility that had pervasive effects on the administration of justice in the District Court of Maryland located in Baltimore City. As demonstrated herein, a judge may be disciplined if he or she engages in a pattern of inappropriate and discourteous behavior. Here, the appropriate sanction for Judge Russell’s misconduct is a consecutive six-month suspension without pay, with her reinstatement conditioned upon her completion of remedial measures set forth by this Court.

The judge sought to suppress evidence seized in the courthouse

Here, according to Judge Waxman, Respondent’s search warrant materials were discovered in a courthouse where Respondent had not worked for approximately two  months. The boxes were labeled “Russell” and “Civil,” and they were found in an unsecure location. Judge Waxman explained, and neither party disputes, that “[t]he boxes were found in the law clerks’ office . . . not in a judge’s chambers.” The office was “the judges’ clerks’ office where there’s a little portion of the clerks’ office that’s been set aside for the law clerks, but it’s all one big area.” In that location, the boxes were accessible by individuals working inside and outside of the judiciary. In sum, Respondent stored her boxes of warrants unsecure and in a high-traffic area that was outside of her personal workspace and immediate attention. As a result, Respondent cannot claim a reasonable expectation of privacy in the boxes, as is necessary to prevail on her Motion to Suppress. Therefore, we conclude that Respondent’s Motion to Suppress was properly denied pursuant to the Fourth and Fourteenth Amendments to the United States Constitution, Articles 22 and 24 of the Maryland Declaration of Rights, and Md. Rule 4-601.

In a footnote, the court questioned whether the exclusionary rule would be available in judicial misconduct proceedings.

No basis to dismiss

We are unpersuaded that the host of legal theories that Respondent asserts warrant dismissing the charges against her. The Maryland Rules do not set forth a statute of limitations for when the Commission must commence disciplinary proceedings against a judge. Rather, the Rules afford the Commission broad discretion to discipline “sanctionable conduct,” defined as “misconduct while in office, the persistent failure by a judge to perform the duties of the judge’s office, or conduct prejudicial to the proper
administration of justice.” Md. Rule 18-401(k)(1). In addition, the allegations of judicial misconduct brought against Respondent have not been the subject of a prior action before any tribunal which resulted in a final judgment.

Furthermore, we cannot fathom, and Respondent does not articulate, how it is prejudicial or unfair to Respondent for the Commission to hold her accountable for conduct that she committed while serving as a judge, albeit before her reappointment in 2016. Given that Respondent is serving as a Maryland judge, she is subject to the authority of the Commission and this Court for disciplinary matters.

Before the court on the merits

In her Exceptions, Respondent objected to nearly all of the Commission’s findings of fact and conclusions of law. For purposes of organization, we have divided the Commission’s findings of fact and conclusions of law, and Respondent’s objections thereto, into two categories: (1) Search Warrant Issues; and (2) Interpersonal Issues.

A misconduct finding was warranted as to the warrants

Here, however, Respondent utterly failed to fulfill her duty under Md. Rule 4-601 to file executed warrants with the clerk’s office. She also admittedly failed to comply with the internal policy that prohibited a judge from signing a search warrant return for another judge unless the two judges were assigned to the same court when she handled a search warrant return for Judge Gordon. Moreover, her nomad boxes were kept in a public area, accessible to numerous individuals inside and outside of the judiciary. Her inattention demonstrates a disregard for the critical nature of search warrants and her duties under Md. Rule 4-601.

The court recites the evidence of discourteous interactions with staff and other judges

In essence, the Exceptions reflect that Respondent views herself as the victim and a problem solver. She asserts that members of the District Court’s administrative staff, including Ms. Brown and Ms. Walker, simply do not like her. Respondent characterizes her conduct as solving problems, ensuring competent, efficient service to the public, and engaging in “lively discussion.” Respondent maintains that her actions did not constitute sanctionable conduct.

Concluding

When handling clerical errors, Respondent failed to maintain an equanimous demeanor. Lacking a modicum of civility, Respondent was eruptive, disrespectful, and demeaning toward courthouse staff. Respondent yelled at, accused, and humiliated staff members. She physically shoved an employee of the judiciary, Ms. Brown. Respondent’s erratic behavior occurred in front of litigants and lawyers. Likewise, Respondent repeatedly yelled at her colleagues, and did so in front of other judges, court staff, and members of the public. She interrupted an ongoing trial presided over by another judge to address a scheduling matter, which not only violated internal operating procedures, but disturbed the ongoing proceedings in that court. On multiple occasions, Respondent defied the directives of administrators and supervisors, and even attempted to undermine their authority. On one occasion, Respondent accused her Chief Judge of threatening her without cause.

Respondent exhibited a pattern of divisive, combative, and volatile interpersonal issues. Her conduct is unbecoming of a member of the judiciary, and it fails to maintain the demeanor that our Rules require of judges...

We, therefore, uphold the Commission’s conclusions of law and overrule Respondent’s exceptions thereto.

More than a personality clash

Respondent, indeed, has exhibited a pattern of incivility that has had demonstrated adverse effects on the District Court where she sits. The Commission has pointed to 15 judges and several members of the courthouse staff who came forth to testify in this proceeding about Respondent’s behavior from 2007-2015. Her colleagues identified no less than 13 instances in three years (2014-2017) where Respondent exhibited disrespectful and demeaning behavior, many instances of which were in public. Her conduct resulted in a toxic environment. Collectively, her colleagues described that, when working in the same courthouse as Respondent, the atmosphere was hostile, tense, dysfunctional, stressful, and unpleasant. They explained that when Respondent is in the vicinity, judges tend to keep to themselves, close their doors, and “[e]verybody is walking on eggshells.” Her conduct, according to her District Court colleagues, “has created . . . a division and divide among [their] bench.”

The supervisors who serve on Respondent’s court have attempted to remedy administratively the situation. Chief Judge Morrissey met with Respondent in April 2015 and asked her to work to get along with her colleagues. Respondent failed to adjust her behavior. Chief Judge Morrissey also sought recourse with the human resources department, and eventually he arranged for mediation to be held between Respondent and one of her colleagues. Again, Respondent failed to adjust her behavior. Despite his efforts,  Chief Judge Morrissey received information from more than a dozen District Court judges who indicated that they were in contentious relationships with Respondent. Respondent has demonstrated a pattern of violating the Maryland Rules. Her misconduct has fostered an uncomfortable work environment in the District Court, yet Respondent has maintained an unwillingness to alter her conduct. The widespread effects that her misbehavior has had on the administration of justice warrants this Court’s sanction...

We set as conditions precedent to Respondent’s reinstatement of her duties as a judge that Respondent shall: (1) submit to a health care evaluation, to be performed by a qualified health care professional or professionals who are acceptable to the Commission and, ultimately, this Court, for a complete emotional and behavioral assessment; (2) fully cooperate in the health care evaluation and comply with the recommended course of treatment, including counselling, if any; and (3) if and when Respondent applies for reinstatement, she shall provide, to the Commission and ultimately this Court, a written report from the evaluating health care professional or professionals as to her current medical condition, including any reason for which she should not be reinstated as a judge of the District Court. In addition, Respondent’s reinstatement is conditioned upon her satisfactory completion of an approved course on judicial ethics as recommended by the Commission.

Oral argument video linked here. 

The Baltimore Sun recently reported on new allegations against the judge.

District Court Judge Devy Patterson Russell is accused of violating the state’s rules of judicial conduct. The commission’s investigative attorneys allege she used her influence as a judge to try to embarrass a colleague, Judge Catherine “Katie” Curran O’Malley.

Russell, a district judge since 2006, has long disliked O’Malley, two other judges testified on Monday.

Russell faces a six-month suspension from an earlier case, in which the commission found she yelled at other judges and staffers, pushed a courthouse employee and neglected search-warrant paperwork.

The commission recommended the suspension in November, finding that her behavior and comments “were undignified, uncooperative, discourteous, demeaning, and clearly demonstrate a pattern of serious violations of the Maryland Code.” But it’s up to the Maryland Court of Appeals to decide whether to impose the suspension — and the court has not yet ruled.

At issue this time is an incident that happened in O’Malley’s courtroom in January 2015.

Investigative attorneys say Russell spread a rumor that that O’Malley had used profanity toward a citizen in the courtroom, telling others at the courthouse that O’Malley used “the F-bomb.” They alleged that Russell tried to influence bailiffs to change a report about the incident.

Russell’s alleged conduct, investigative attorney Tanya C. Bernstein said at the hearing, “demonstrates a lack of respect for the office she holds.” Russell is accused of breaking rules about promoting confidence in the judiciary, cooperating with other judges and avoiding using the prestige of office for personal interest.

Russell’s attorney, William C. Brennan, Jr., emphasized she never leaked any information to the news media about the incident and said there would be no testimony that Russell instructed a bailiff what to write in the report. ­

(Mike Frisch)

June 28, 2019 in Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, June 27, 2019

What 25 Years On The Bench Gets You

The New Jersey Appellate Court held that ex parte communication with a judge required recusal and merits relief in a civil case involving an alleged breach of a promise to hire the plaintiff

The judge disclosed the ex parte communication in chambers, and confirmed it on the record. In summary, one of the judge's former law clerks,  who was an associate at the defense firm, contacted the judge by text to inquire if she was available to preside over the trial. The judge apparently had no prior connection to the case, which involved significant pre-trial motion practice. The former clerk identified the senior attorney at her firm who would try the case. The judge understood that the attorney liked to appear before her. The judge then spoke to the presiding judge and, relying on her seniority, secured assignment of the case.

When plaintiff's counsel learned that the judge's assignment of the case resulted from an ex parte contact with defense counsel, he sought the judge's recusal.

The judge explained

[Defense counsel's] firm had hired a prior law clerk of mine . . . I think that was five years ago . . . I told both counsel that [she] had texted me this morning saying that [defense counsel] was waiting around for a judge and I said well I'll be in and I'd love to take the case.

In the course of the on-the-record colloquy, the judge later added that she requested the assignment from the presiding judge:

I'll go further. I stopped in this morning and said, "You got a case around here, because I'm a senior Judge, I don't like doing car accident cases." So in some ways I get my pick. . . . Because that's what 25 years on the bench will get you.

It may get you an appearance of impropriety

Judge-shopping – an attorney's attempt to have a particular judge try his or her case – may undermine public confidence in the impartial administration of justice...

Our Supreme Court has expressed its disapproval of defendants' manipulation of the system to secure the removal of a judge they dislike. See, e.g., State v. Dalal, 221 N.J. 601, 607-08 (2015). It is just as damaging to the integrity of the judicial process when parties secure, without the opposition's knowledge or consent, the assignment of a judge they prefer. When the judge affirmatively facilitates his or her selection by that one party, public confidence and the appearance of impartiality are further undermined.

The repair

We conclude that public confidence will be restored by our leaving in place the jury's findings; vacating the trial judge's rulings challenged on appeal and cross-appeal; deciding those issues de novo or in the exercise of original jurisdiction; and remanding for a new trial on damages.

The unidentified judge has retired. (Mike Frisch)

June 27, 2019 in Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, June 26, 2019

Prohibition Yes Mandamus No

The Ohio Supreme Court has granted a writ of prohibition but denied a writ of mandamus in a matter that flowed from a judge's arrest

This is an original action by relator, WBNS 10-TV, Inc., for writs of prohibition and mandamus against respondent, Franklin County Common Pleas Domestic Relations Court Judge Monica Hawkins. Judge Hawkins agrees that a writ of prohibition should issue, and we hereby grant a writ of prohibition. We deny the request for a writ of mandamus in Count One of 10-TV’s complaint as moot, deny the requests in 10-TV’s emergency motion for peremptory writs of prohibition and mandamus as moot, and grant the parties’ stipulated application to dismiss Count Two.

On Thursday, January 31, 2019, Judge Hawkins was arrested for driving under the influence. On February 4, a reporter for 10-TV made a written request for media access to the proceedings in Judge Hawkins’s courtroom scheduled for that same day. Judge Hawkins denied the request without conducting the requisite closure hearing. Her entry denying 10-TV’s request was based on the ground that 10-TV did not give court personnel sufficient advance notice. However, when 10-TV asked Judge Hawkins’s bailiff for a copy of the court’s docket for the next day so that it could make a more timely request for media access, the court refused.

On February 6, 2019, 10-TV commenced an original action seeking writs of prohibition and mandamus. Specifically, in Count One of the complaint, 10-TV sought a writ of prohibition, a writ of mandamus, or both to prevent Judge Hawkins from closing her courtroom unless and until she complied with the procedural requirements for doing so. And in Count Two, 10-TV sought a writ of mandamus to compel Judge Hawkins to produce the requested docket in compliance with Ohio’s Public Records Act. At the same time that 10-TV filed the complaint, 10-TV also filed a motion for a peremptory writ of prohibition or mandamus.

In accordance with an order from this court, on February 12, Judge Hawkins filed an expedited response to 10-TV’s complaint and emergency-relief motion. In her response to Count One of 10-TV’s complaint, she wrote that she “agrees to the issuance of a peremptory writ of prohibition requiring compliance with Sup.R. 12 and associated case law.” In response to 10-TV’s demands for writs of mandamus to compel the release of public records, Judge Hawkins affirmed that “all public records requested by [10-TV] have been provided” and that it was her understanding that the mandamus requests would be dismissed as moot.

...we grant a writ of prohibition, deny the request for a writ of mandamus in Count One as moot, deny the motion for peremptory writs as moot, and grant the application to dismiss Count Two.

(Mike Frisch)

June 26, 2019 in Judicial Ethics and the Courts | Permalink | Comments (0)

Monday, June 17, 2019

No Stay Of Judicial Misconduct Proceedings For Indicted Judge

The Kentucky Supreme Court rejected a judge's appeal of three motions denied by the state Judicial Conduct Commission

We recognize from the outset that the burden is upon Judge Maze to prove that her circumstances require that the JCC proceedings against her be deferred during her criminal prosecution. Unquestionably, the facts underlying the criminal prosecution appear to overlap with the facts underlying the misconduct charges against her in the JCC proceedings. So far in the criminal prosecution, Judge Maze has been indicted, arraigned on all charges, and pleaded not guilty. A pretrial conference is now set for September 17, 2019, and a trial date for November 12, 2019.

Justification for moving forward

As of now, Judge Maze has been on paid suspension from her duties as circuit judge since October 2, 2018.

The JCC’s interests in proceeding without impediment include: (1) maintaining the integrity of the state’s judicial system by the faithful discharge of its constitutional mandate to regulate the conduct of persons responsible for the administration of justice in this Commonwealth; and (2) disposing expeditiously of all pending matters before the JCC within the time constraints imposed by SCR 4.000, et seq. The JCC’s interests correspond with the public’s interest in the prompt resolution of the misconduct charges against Judge Maze. The public’s interest further demands: (1) minimizing disruption of routine court business to the citizens of the 21st Judicial Circuit and the Commonwealth; (2) reducing the additional expenditure of state funds for special judges deployed to the 21 st Judicial Circuit to continue the work of the court while Judge Maze remains suspended; and (3) reducing length of time Judge Maze receives a full judicial salary and benefits while incapable of performing any judicial duties.

Judge Maze argues that she will suffer increased difficulties because of the parallel criminal charges and disciplinary charges: (1) the quandary of asserting her Fifth Amendment right against self-incrimination and defending herself fully in both proceedings; (2) the financial strain of defending two suits; and (3) the overlap of evidence from the disciplinary proceeding allowing its use in the criminal case and vice versa. These difficulties are no greater for Judge Maze than for any judge confronting parallel disciplinary and criminal charges. And any financial burden on Judge Maze does not appear to increase if the JCC proceedings proceed without further delay.

Holding

In sum, the balance of equities in this case favors allowing the JCC to move ahead with its disciplinary proceedings. The overarching public interest in an expedited resolution of disciplinary proceedings against a sitting judge furthers the goal of maintaining the public’s trust and confidence in the judiciary while, at the same time, minimizing expense and inconvenience to the public. These interests outweigh the burden of parallel proceedings suffered by Judge Maze. Upon full review of the record, we hold that the JCC did not err in denying Maze’s motion for a stay.

Justice Keller dissented

Here, not only have criminal indictments been returned against Judge Maze, but her criminal trial has been scheduled for November of this year. A stay would therefore delay the JCC proceeding for only a few months. The brevity of this delay weighs in favor of entering the stay.

As did Justice Lambert

Because the public and the judiciary are fully protected by the temporary measures taken by the JCC and the Chief Justice, there is no compelling state interest, thus the stay pending her criminal case should be granted.

Her criminal charges, which overlap the JCC charges, are two counts of Second-Degree Forgery and one count of Tampering with Public Records. These charges are the result of her signing two orders for a drug test on her ex-husband for two different hospitals.

Justice Wright dissented on the court's jurisdiction to entertain the appeal.

WKYT reported on the criminal charges.

The judge has filed suit against the JCC and its actors in federal court.

The facts of this case, while somewhat complicated, have exposed a path which the Defendants have chosen to follow in their quest to remove Judge Beth Lewis Maze from her position as Circuit Judge for the 21st Judicial Circuit, a path which is intended to benefit others involved in a conspiracy. The conduct of the Defendants, Defendants who have acted in concert with each to violate Judge Maze’s rights, is conduct which should be rejected, conduct which should never be tolerated by a civil society, especially when individuals acting under the color of law choose to abuse their positions of trust for the sole purpose of destroying the reputation of a public servant, and to do so simply to achieve goals which the Defendants could not accomplish at the ballot box.

The facts of this case should shock the conscious of all those who believe in the integrity of the legal system. The facts of this case should for once act as a means to pull back the curtain on the secret proceedings of the Kentucky Court of Justice, Judicial Conduct Commission, and finally expose the unregulated power of those who hide behind the impenetrable curtain of the Judicial Conduct Commission. The facts of this case will finally expose the secret proceedings to the light of day and allow the public to have a voice, and more importantly, to allow those who find themselves in the crosshairs of the Judicial Conduct Commission which will permit them to avail themselves to a public trial envisioned by the Founding Fathers.

 (Mike Frisch)

June 17, 2019 in Judicial Ethics and the Courts | Permalink | Comments (0)

Monday, June 10, 2019

"The Whole System, Quite Frankly, Sucks"

The New York Commission on Judicial Conduct has accepted the resignation of a town and village court justice for injudicious remarks at a village board meeting.

From the stipulation

On or about October 13, 2015, Respondent attended a Wolcott Village Board meeting at which public concerns regarding crime in the village were discussed. Village Mayor Christopher J. Henner, Village Police Officer-in-Charge Tom Ryan, two village trustees and several village residents were present during the meeting.

Respondent, who was introduced at the meeting as "Judge Stone," made the following public statements about the judicial system:

A. "To start with, the whole system, quite frankly, sucks."

B. "If they are a minor, I'm never going to see them because they are going to family court."

C. "After five days, if the county decides not to do [a] preliminary hearing, I have to release them. It doesn 't matter, it's not my choice. It's a lawyers' world."

D. "Most of these individuals, ifl had my way, you'd see them probably swinging outside the door, okay? That's the way I was brought up."

E. "But thanks to lawyers, everybody has rights."

On or about October 21 , 2015, a local newspaper, The Lakeshore News, quoted Respondent's public statements at the Wolcott Village Board meeting.

(Mike Frisch)

June 10, 2019 in Judicial Ethics and the Courts | Permalink | Comments (0)

Sunday, June 9, 2019

I Could Write A Book

A recent opinion of the Florida Judicial Ethics Advisory Committee

Opinion Number: 2019-18
Date of Issue: May 28, 2019

ISSUES

1. May a judge write a book that touches on matters related to family court, mental health and warning signs?

ANSWER: 

Yes. So long as the book does not cast reasonable doubt on the judge's capacity to act impartially as a judge; demean the judicial office; or interfere with the proper performance of judicial duties.

2. May a judge actively promote the book?

ANSWER: 

Yes. So long as the judge does not use the prestige of office to promote the book and neither the judge, the judicial assistant, nor a member of the judge’s family sells the book to any member of the Bar.

FACTS

The inquiring judge has for years sat on the family law bench and for years prior to that practiced in the area of family law. The judge recently closely observed a sensational criminal case that grew out of divorce proceedings in the judge’s jurisdiction. The case called into question the mental health of the defendant who was accused of a violent attack on a spouse. The judge believes mental health issues contributed to the criminal episode. The judge is interested in writing a book about family law courts and the sometimes-associated mental health issues. Specifically, the judge wants to discuss the “warning signs” that judges and litigants should be concerned about.

Cautionary tale

When writing or promoting a book, a judge must take precautions to make certain the judge does not intermingle the writing, promotion or sale of the book with court related obligations. We offer, as a cautionary tale, In re Hawkins, 151 So.3d 1200 (Fla. 2014). In In re Hawkins, Judge Hawkins operated a private business from which she sold religious themed items among them a book she authored. Id. at 1203. The supreme court found violations of several of the Canons because “clear and convincing evidence demonstrated that [Judge Hawkins] regularly used court resources, including the services of her judicial assistant, [to conduct the judge’s private] business at work and during working hours.” Id. at 1212. The evidence included lawyers and other court personnel purchasing the book at the courthouse. Id. Additionally,speaking engagements for the private business were coordinated using the judge’s work phone, work computer and were handled by her judicial assistant. Id. Judge Hawkins linked the sale of her business products to her judicial office by appearing on the business website wearing the judge’s judicial robe, exploiting the judge’s judicial position for personal gain. Id.

In sum, we agree the judge may promote and sell the judge’s book. However, the judge must not allow the promotion of the book to demean the judge’s office or call into question the judge’s impartiality. Additionally, neither the judge, the judge’s assistant, nor any member of the judge’s family may sell the book to members of the bar.2 The form of advertisement or promotion chosen by the judge or the judge’s publisher must not be presented in ways that: (1) cast reasonable doubt on the judge’s capacity to act impartially as a judge; (2) undermine the judge’s independence, integrity, or impartiality; (3) demean the judicial office; (4) interfere with the proper performance of judicial duties; (5) lead to frequent disqualification of the judge; or (6) appear to a reasonable person to be coercive. Fla. Code Jud. Conduct, Canons 4A, 5A.

(Mike Frisch)

June 9, 2019 in Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, June 5, 2019

Judge Was Bad Judge Of Character

The Indiana Supreme Court accepted a 45-day suspension of a judge who appointed a friend who turned out to be a untrustworthy trustee

We find that Respondent, the Honorable Robert W. Freese, Judge of the Hendricks Superior Court 1, engaged in judicial misconduct by appointing an unqualified friend as trustee of a trust and personal representative of a related estate, failing to disclose the friendship or a financial relationship with the friend, and failing to act promptly when faced with mounting evidence of the friend’s mismanagement and embezzlement of the funds entrusted to him.

The story

In 2004, Scott needed $122,400 to buy a home but had poor credit after a bankruptcy. Judge Freese used his line of credit to lend Scott the funds. On January 13, 2005, they executed and recorded a mortgage in that amount, and Scott gave the Judge a promissory note.

Seventeen days later, Judge Freese appointed Scott as trustee over the Herbert Hochreiter Living Trust in Trust of Herbert Hochreiter, No. 32D01- 9710-TR-000003. None of the parties objected, but the Judge never disclosed his financial arrangement with Scott.

Later in 2005, Herbert Hochreiter died, and an estate was opened with an estimated $2.3 million in real and personal property. Judge Freese took the matter under advisement after a hearing, and on October 24 appointed Scott as personal representative of the Estate. As before, none of the parties objected, nor did the Judge disclose his financial arrangement with Scott.

Over a period of years

the Judge had multiple indications of Scott’s poor performance: Summonses sent to Scott were returned to sender. Scott’s counsel requested the court’s guidance and intervention, reporting that Scott was unresponsive and that the Trust checking account contained only $8.27 and its savings account had been closed for over 6 months—when counsel estimated it should have $50,000 to $60,000 in cash. And one of the beneficiaries filed a detailed objection and multiple rules to show cause or contempt citations against Scott. Judge Freese “took no action or minimal action” on those reports. But while the cases were pending and Scott was living in Florida, he left Scott a phone message stating he was concerned that Scott was behaving bizarrely, and that he “would never have thought [Scott] would have stolen anything.”

The less than great Scott had run off with nearly $600,000 and the judge entered a judgment against him but

Judge Freese never referred those findings to the local prosecutor or to the United States Attorney. But Scott pleaded guilty in 2017 to federal charges stemming from his embezzlement, which took place from August 2007 through July 2011. The stolen funds remain unrecovered.

Level of culpability

Unlike typical violations of Rule 2.4(B), the Judge’s misconduct was mostly negligent, not willful...

But the Judge’s misconduct ultimately enabled a massive theft. First, appointing Scott violated Rule 2.13(A)(1)’s duty to make “appointments . . . impartially and on the basis of merit”—he lacked fiduciary experience and had been bankrupt recently enough to have poor credit. Subjectively, the Judge trusted Scott, as his loan shows. But objectively, Scott was utterly unqualified to be entrusted with a third party’s money; appointing him seems to have been driven by friendship, not merit. Then, that friendship clouded the Judge’s objectivity through seven years of warning signs— making him unreasonably credulous of, and lenient towards, Scott in the face of growing evidence of serious financial misconduct. If not for the Judge’s inaction, Scott’s theft likely could have been largely prevented.

After review of the precedents

The parties here have agreed to a 45-day suspension—squarely between the above guideposts. “The purpose of judicial discipline is not primarily to punish a judge, but rather to preserve the integrity of and public confidence in the judicial system and, when necessary, safeguard the bench and public from those who are unfit.” Hawkins, 902 N.E.2d at 244 (Ind. 2009). The sanction must be designed to deter similar misconduct and assure the public that judicial misconduct will not be condoned. Id. As the above cases illustrate, a 45-day suspension from office without pay is a very serious sanction, but we agree it is warranted here, in view of the serious harm to the Trust and Estate that were enabled by the Judge’s misconduct.

(Mike Frisch)

June 5, 2019 in Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, May 23, 2019

Anti-Trump Posts And Other Misconduct Get Judge Suspended In Utah

The Utah Supreme Court has suspended a judge for six months without pay

This judicial discipline proceeding requires us to decide the appropriate sanction for a judge who has engaged in repeated misconduct. Judge Michael Kwan acknowledges that he violated the Utah Code of Judicial Conduct when he made seemingly shirty and politically charged comments to a defendant in his courtroom. Judge Kwan similarly admits that he violated the code of conduct when he lost his temper with a member of the court’s staff and improperly used his judicial authority to seek that individual’s removal from the premises. Moreover, in response to questions at oral argument, Judge Kwan conceded that an online post critical of then-presidential candidate Donald Trump also violated the code of conduct. But Judge Kwan argues that the six-month suspension the Judicial Conduct Commission (JCC) recommends is inappropriate. He claims  that sanction rests, in part, on an unlawful attempt to regulate his  constitutionally protected speech, and he asserts that a less severe penalty is all that is warranted.

Judge Kwan raises important First Amendment questions, but he fails to address our case law holding that a judicial disciplinary proceeding is an improper venue to press those constitutional claims. Bound by our precedent, we therefore do not address the constitutional questions, and we limit our consideration to that portion of Judge Kwan’s online speech that he concedes we can permissibly sanction. That statement, coupled with the other misconduct before us, as well as Judge Kwan’s history of prior discipline, convinces us that a six-month suspension without pay is the appropriate sanction.

There were prior matters addressing the judge's behavior

Judge Kwan has served as a justice court judge for the City of Taylorsville for the past two decades. On multiple occasions, the JCC has reviewed allegations that Judge Kwan violated various provisions of the Utah Code of Judicial Conduct. As a result of the JCC’s investigations into those allegations, Judge Kwan has received two letters of education from the JCC and two public reprimands from this court. The Utah State Bar Ethics Advisory Opinion Committee has also issued two opinions relating to Judge Kwan— one not expressly naming him but directed to his conduct, and another issued in response to his questions regarding, among other things, rules limiting judicial commentary on statements made by a candidate for political office. See Utah State Bar Ethics Advisory Committee, Informal Opinion 16-02 (2016); Utah State Bar Ethics Advisory Committee, Informal Opinion 15–01 (2015).

This guidance has been animated by two general concerns regarding Judge Kwan’s behavior: his improper use of judicial authority and his inappropriate political commentary. The JCC’s letters of education addressed Judge Kwan’s abuse of judicial authority, which manifested in improperly revoking probation, imposing jail in absentia, and ordering excessive bail...

Our first public reprimand addressed Judge Kwan’s crass incourt reference to sexual conduct and a former president of the United States. During the underlying proceeding before the JCC concerning that comment, Judge Kwan acknowledged that the Utah Code of Judicial Conduct requires judges to be patient, dignified, and courteous to those with whom the judge deals in an official capacity. See UTAH CODE JUD. CONDUCT R. 2.8(B). He also acknowledged that his comments violated that requirement and constituted conduct prejudicial to the administration of justice.

Our second public reprimand addressed political activities associated with Judge Kwan’s service as president of a nonprofit organization. The organization took public positions on a range of issues, criticized candidates for political office, and posted articles and press releases online that included Judge Kwan’s name and
judicial title.

The November 2016 reprimand is linked here. 

Now

After the Utah State Bar issued these opinions, and shortly after we handed down our second public reprimand, the JCC began investigating additional potential misconduct. Specifically, the JCC investigated allegations that Judge Kwan: (1) made political statements in court, (2) handled a dispute with court personnel inappropriately, and (3) posted political comments online. During the investigation, Judge Kwan conceded that he had engaged in the behavior underlying the allegations.

An in-court comment on the tax cut drew judicial rebuke 

Judge Kwan contends that this was intended to be funny, not rude. It is an immutable and universal rule that judges are not as funny as they think they are. If someone laughs at a judge’s joke, there is a decent chance that the laughter was dictated by the courtroom’s power dynamic and not by a genuine belief that the joke was funny.

So true!

Also true with respect to work supervisors. 

As to current politics

With respect to Donald Trump, Judge Kwan’s postings were laden with blunt, and sometimes indelicate, criticism. In July 2016, for example, Judge Kwan posted an article entitled “Ghazala Khan: Trump criticized my silence. He knows nothing about true sacrifice.” Above the article’s headline, Judge Kwan added, “Checkmate.”

Examples

On November 11, 2016, three days after the presidential election, Judge Kwan remarked, “Think I’ll go to the shelter to adopt a cat before the President-Elect grabs them all . . . .”

On January 20, 2017, the day President Trump was inaugurated, Judge Kwan commented, “Welcome to governing. Will you dig your heels in and spend the next four years undermining our country’s reputation and standing in the world? . . . Will you continue to demonstrate your inability to govern and political incompetence?”

On February 13, 2017, Judge Kwan posted, “Welcome to the beginning of the fascist takeover.” He continued, “[W]e need to. . . be diligent in questioning Congressional Republicans if they are going to be the American Reichstag and refuse to stand up for the Constitution, refuse to uphold their oath of office and enable the tyrants to consolidate their power.”

The court

But the problem here is not primarily a concern that Judge Kwan has voiced his views on a range of political issues via his criticisms of Donald Trump. Far more importantly, Judge Kwan has implicitly used the esteem associated with his judicial office as a platform from which to criticize a candidate for elected office. Fulfillment of judicial duties does not come without personal sacrifice of some opportunities and privileges available to the public at large. And as a person the public entrusts to decide issues with utmost fairness, independence, and impartiality, a judge must at times set aside the power of his or her voice—which becomes inextricably tied to his or her position—as a tool to publicly influence the results of a local, regional, or national election.

Judge Kwan’s postings continue a pattern of inappropriate political commentary, as previously addressed in our second public reprimand, following Judge Kwan’s service as president of a national organization that, among other things, criticized candidates for political office. What’s more, the Utah State Bar Ethics Advisory Opinion Committee offered substantial guidance to Judge Kwan on this topic. Judge Kwan nevertheless engaged in behavior that violates our code of conduct, despite the prior attempts to dissuade him from that path.

We thus conclude, as did the JCC, that Judge Kwan has violated several rules of the Utah Code of Judicial Conduct. And he has engaged in conduct prejudicial to the administration of justice which brings a judicial office into disrepute. See UTAH CONST. art. VIII, § 13.

Sanction

We give significant weight to the fact that Judge Kwan has been the subject of prior discipline and the recipient of prior guidance. We note that previous endeavors to help Judge Kwan correct this behavior have not been successful. And we regretfully conclude that a sanction less severe than suspension without pay will suffer the same fate as our prior attempts. Repeated instances of misconduct are serious matters, which may render a judge not only subject to suspension, but also to removal from office. Judge Kwan’s
behavior denigrates his reputation as an impartial, independent, dignified, and courteous jurist who takes no advantage of the office in which he serves. And it diminishes the reputation of our entire judiciary. For these reasons, we implement the JCC’s order without modification.

Had to look up "shirty." It is in fact a word. (Mike Frisch)

May 23, 2019 in Judicial Ethics and the Courts | Permalink | Comments (0)

Sunday, May 19, 2019

Docket Clerk's Relationship Not Imputed To Judge

The South Carolina Advisory Committee on Standards of Judicial Conduct opines

A municipal court judge’s docket clerk is in a relationship with a law enforcement officer for the same municipality. The docket clerk is responsible for scheduling cases and documenting events that occur in cases while in open court. The docket clerk is also responsible for case management, including recording final dispositions in Municipal Court cases and following instructions from the municipal judge(s). The docket clerk appears in court regularly and may be present at the same time that the law enforcement officer the clerk is dating appears to prosecute traffic cases. The municipal court judge inquires as to whether he or she must disclose to all parties the relationship between the docket clerk and the law enforcement officer, or if the docket  clerk should be recused from handling those cases.

Negative

In this case, the judge is not actually involved in a relationship with the law enforcement officer, and there is no cause to question the judge’s impartiality. Furthermore, the docket clerk merely performs ministerial duties regarding case scheduling and management. Thus, there is no need to recuse the docket clerk from cases in which the law enforcement officer appears. Likewise, there is no need for the judge to disclose the relationship of the docket clerk and the law enforcement officer to all parties.

(Mike Frisch)

May 19, 2019 in Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, May 16, 2019

A Judge's (Ap)parent Conflicts

The Florida Judicial Ethics Advisory Committee opines

ISSUES

1. Whether a judge whose lawyer-parent is no longer associated with former law firm must continue recusing from the law firm’s cases.

ANSWER: No.

2. Whether judge whose parent owns building leased to a law firm must enter automatic recusal when the firm has a case before the judge.

ANSWER: Yes, unless the parent’s interest can be classified as de minimis.

FACTS

The inquiring judge has issued a blanket recusal on all cases involving the law firm where the judge worked before joining the bench because, until recently, one of the judge’s parents is a lawyer associated with the law firm. However, with the judge’s parent soon retiring, the judge asks whether the judge should continue to issue a blanket recusal on all of the firm’s cases. Additionally, the judge’s parent will continue to own the building where the law firm is a tenant. The inquiring judge asks whether that remaining economic relationship between the judge’s parent and the law firm mandates recusal.

Reasoning

The first question posed by the inquiring judge requires little discussion. The judge is no longer required to maintain the previously entered blanket recusal when the judge’s parent is no longer associated with the law firm, so long as there is no other reason that the judge’s impartiality could be reasonably questioned.

The answer to the second question posed by the inquiring judge is more nuanced, and one which this Committee has not previously addressed in the same context. The Committee has previously opined that a judge in an economic relationship, such as landlord-tenant, with a lawyer or law firm should issue an automatic recusal. See, e.g.,Fla. JEAC Op. 85-08 (in inquiry from judge with mortgage held by lawyer, who is now tenant in the building he sold to judge, JEAC opined that “in view of the extent of this relationship, both tenant/landlord and creditor/debtor, you should recuse yourself and not sit on cases involving this attorney”); Fla. JEAC Op. 97-33 (blind trust does not remove conflict of interest where judge rents space to a lawyer who appears before the judge); Fla. JEAC Op. 01-11 (judge who owns lakeside trailer used for fishing trips with elected State Attorney must disqualify himself from all cases involving the state attorney’s office).

The Committee has also addressed situations where the judge’s spouse or child has an economic relationship with a law firm. See, e.g., Fla. JEAC Op. 18-26 (“Numerous opinions of this Committee have indicated that disqualification is required when a spouse or child of the judge is a member of a law firm practicing before the judge. See, e.g., Fla. JEAC Ops. 97-0808-06. These holdings are based on the Committee’s conclusion that when a judge’s spouse or child is employed by a law firm appearing before the judge, the judge’s spouse or child has more than a de minimus economic interest that could be substantially affected by the proceeding. Fla. JEAC Ops. 08-0607-1606-2698-20.”). The analysis is markedly different, however, when the judge’s relative is employed by governmental agencies. See Fla. JEAC Op. 18-26 (“A different conclusion has been consistently reached by this Committee when faced with inquiries related to relatives employed by a state attorney, a public defender, or a legal aid office . . . [A] spouse or relative in a governmental position does not have a substantial interest in the outcome of the proceeding as might be the case if the spouse were employed in a private law firm where law partners or associates who share good will, profits, and losses are engaged in one another’s cases regardless of the identity of the attorney of record.”).

We have consistently noted that inquiries such as the one presented here must be decided on a case-by-case basis. See Fla. JEAC Op. 07-16 (“[I]ssues 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. If the relationship suggests that the judge’s impartiality might reasonably be questioned, 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, then the judge is disqualified. The present inquiry concerns a relative who is a student, non-lawyer, working part-time on an hourly basis, and has a de minimis interest in the firm and the proceeding. Under those circumstances, it is unlikely that the impartiality of the judge might reasonably be questioned.”).

Therefore, we advise the inquiring judge that recusal from cases involving the law firm which leases its office space from the judge’s parent is required unless the judge concludes that the judge’s parent’s interest in the economic well-being of the law firm is de minimis. The Committee believes that such a situation would be exceedingly rare. For example, if the law firm is not obligated to pay rent to the judge’s parent, then the judge could conclude that the parent’s interest in the firm is de minimis.

(Mike Frisch)

May 16, 2019 in Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, May 14, 2019

Oath Sworn Answers Not Required

The Nevada Supreme Court granted in part a judge's motion by holding that she need not respond to questions under oath in a pre-charges investigation

To be clear, a judge owes an ethical duty to "cooperate and be candid and honest" with the Commission. NCJC Rule 2.16(A). A judge must also "respond to [a] complaint in accordance with procedural rules adopted by the Commission." NRS 1.4667(3). But nothing in our statutes or the Commission's procedural rules authorize the Commission to demand that a judge answer questions under oath during the investigative phase, before a formal statement of charges has issued. We therefore grant Andress-Tobiasson's request for a writ of prohibition to prevent the Commission from requiring her to answer questions under oath at this preadjudicative stage of the disciplinary process.

To the extent Andress-Tobiasson asks that we forbid the Commission from asking her questions before a formal statement of charges, regardless of an oath requirement, we deny her petition. The Commission concedes that a response to its questions is voluntary and that it will not apply Procedural Rule 12(3)'s penalty of default to AndressTobiasson for failure to answer the written questions. See Commission Procedural Rule 12(3) ("Failure of the [judge] to answer the complaint shall be deemed an admission that the facts alleged in the complaint are true and establish grounds for discipline."). While Andress-Tobiasson still has ethical duties of honesty and cooperation, the lack of adjudicative consequences as to the charges under consideration for failing to respond to the questions alleviates the due process concerns amicus curiae suggest. See Jones, 130 Nev. at 105-06, 318 P.3d at 1083 (recognizing that there is an investigatory stage and an adjudicatory stage of judicial discipline proceedings and that "due process rights generally do not attach during the investigatory phase"). Furthermore, the complaint and the questions the Commission sent Andress-Tobiasson are not in the record and AndressTobiasson has not raised any other issues regarding the propriety of the specific questions posed to her. On this record, Andress-Tobiasson has not demonstrated that extraordinary relief is warranted to prevent the Commission from sending her written questions and asking her to voluntarily answer them during this stage of the disciplinary process.

The case is ANDRESS-TOBIASSON (MELANIE) VS. NEV. COMM'N ON JUDICIAL DISCIPLINE, decide May 10, 2019. (Mike Frisch)

May 14, 2019 in Judicial Ethics and the Courts | Permalink | Comments (0)