Thursday, April 18, 2019
A recently installed judge has been reprimanded by the Florida Supreme Court
In May of 2018, Judge Kollra and his opponent sat together for an interview with the Sun Sentinel newspaper editorial board. Judge Kollra was asked about his personal political affiliation, and he responded that he is a registered Republican. The same question was posed to Judge Kollra’s opponent, and he declined to answer. Although the newspaper did not ultimately publish information about Judge Kollra’s political affiliation, he understood that they could have. . . .
A second incident occurred just a few weeks later, in June of 2018. On June 13, 2018, Judge Kollra attended a judicial candidate forum that was advertised as an “endorsement event” for the Dolphin Democrats. The Dolphin Democrats is a partisan political organization . . . . Judge Kollra was subsequently notified that he had received the official endorsement of the Dolphin Democrats. On June 24, while participating in a judicial candidate forum hosted by the Hills Democratic Club, Judge Kollra concluded his stump speech by telling the attendees that he had recently received the endorsement of the Dolphin Democrats.
The JQC explained that Canons 7C(3) and 7D “very clearly and unambiguously” prohibit partisan political conduct by judges or candidates for judicial office.
Sanction for partisanship
Judge Kollra is a relatively new judge, and having been first appointed in 2016, and this was his first ever foray into an election of any kind. He has no prior disciplinary record with the Commission.
He was admitted to [T]he Florida Bar in 1978, and has maintained an exemplary and, heretofore, unblemished record as a licensed attorney. Further, Judge Kollra admitted to his misconduct, and has cooperated with the Commission in all respects during this inquiry. He deeply regrets that his conduct could have degraded the public’s perception of the impartiality and nonpartisan nature of judicial elections. He hopes to rectify this, in part, by taking responsibility for his misconduct, and accepting the sanction.
Sunday, April 14, 2019
The Florida Judicial Ethics Advisory Committee opines
Opinion Number: 2019-10
Date of Issue: March 28, 2019
1. May a judge who has become president of a religious organization meet with potential new members to solicit membership?
ANSWER: Yes, as long as the solicitation cannot reasonably be perceived as coercive, is not essentially a fundraising mechanism, and such potential new members or people with whom they are affiliated are not likely ever to appear before the Court for which the judge serves.
2. May the judge solicit direct donations to the religious organization?
ANSWER: No, unless the solicitation is limited to other judges over whom the judge does not exercise supervisory or appellate authority.
3. May the judge sell tickets to the religious organization’s fundraiser?
ANSWER: No, unless the sales are limited to other judges over whom the judge does not exercise supervisory or appellate authority.
4. May the judge thank donors at fundraisers and receptions for major donors?
5. May the judge “urge” members of the religious organization to attend various organizational fundraisers and other functions?
ANSWER: Yes, for “other functions”, no for “fundraisers”. It is permissible for the judge to urge members to attend functions that are not fundraisers, however “urging” members to attend fundraising events may be reasonably perceived as coercive, utilizing the prestige of the judicial office for fundraising purposes.
6. May the judge announce to the members of the religious organization various upcoming events, including fundraisers occurring at the location of the organization.
Thursday, April 11, 2019
After a lengthy hiatus the Florida Supreme Court is issuing opinions again.
One involves the public reprimand of a judge
During a felony criminal trial, Judge Dennis Daniel Bailey ordered his courtroom deputy, loudly and in front of the jury, to remove one of the defendant’s attorneys from a sidebar conference. He then improperly denied the defendant’s disqualification motion. Judge Bailey and the Judicial Qualifications Commission have stipulated that he violated the Code of Judicial Conduct and should be publicly reprimanded. We approve the stipulation.
There were two defense attorneys
[w]hen one of the attorneys tried to help his colleague articulate a point during the sidebar, Judge Bailey repeatedly attempted to quiet him by saying, “One lawyer at a time,” “Only one lawyer argues,” followed shortly thereafter by, “You have a hard time understanding me? Two lawyers can’t argue one argument.”
There was no standing order that only one attorney per side was allowed to argue a point, and this was the first time Judge Bailey communicated such an order to counsel.
As the attorney who was trying to help his colleague started to say, “Judge I mean no disrespect,” Judge Bailey raised his voice over the “white noise” that he turned on during the sidebar conversation and ordered his courtroom deputy to approach the bench and “return this attorney to his table.” “The attorney immediately retreated away from the sidebar and back to counsel table as soon as he saw the deputy approaching.” Had the attorney not retreated to counsel table, Judge Bailey “would have allowed the deputy to use physical force, ‘if necessary.’ ” All of this was “in full view and hearing of the jury.”
Ms. Espejo’s non-removed attorney then moved for time to file a disqualification motion. Judge Bailey allowed a forty-five-minute break to draft and file the motion to disqualify, and then denied it as legally insufficient. Judge Bailey improperly denied the motion because he believed it was a “trial tactic” and he could be fair to the parties. He “did not consider the motion from the defendant’s perspective when considering whether or not to grant it.”
In the judicial misconduct proceeding, the judge admitted he had behaved intemperately.
Judge Bailey, on his own, signed up for stress management counseling “so that in the future, he is better equipped to handle stressful situations, and does not resort to knee-jerk reactions.” He has also apologized, in writing, to Ms. Espejo’s attorney for what happened during the trial.
He also had no prior record of judicial discipline. (Mike Frisch)
Wednesday, April 10, 2019
The Legal Intelligencer reports on sanctions imposed on two former judges by the Pennsylvania Supreme Court
Former Philadelphia Court of Common Pleas Judge Angeles Roca and former Philadelphia Municipal Court Judge Dawn Segal have both had their law licenses suspended for one year and one day.
The Pennsylvania Supreme Court issued separate orders Tuesday adopting the recommendations of a three-member panel of the Disciplinary Board, which were based on joint petitions in support of discipline on consent filed by the Office of Disciplinary Counsel, the two ex-judges and their counsel.
A suspension of more than a year means both Segal and Roca will need to reapply to have their law licenses reinstated.
Roca and Segal were found in 2016 to have violated the state constitution and the Code of Judicial Conduct by engaging in ex parte contact with former Municipal Court Judge Joseph C. Waters Jr., who was later charged criminally and sentenced to 24 months in prison for fixing cases of political donors.
They were initially suspended from the bench before eventually being removed and barred from ever holding public office again by the Court of Judicial Discipline in December 2016.
The CJD determined that Segal violated four judicial canons and three articles of the state constitution, including prohibitions against engaging in ex parte communications, allowing others to believe they could influence her, failing to report the communications, failing to disqualify herself, and interfering with the normal operations of the court.
The charges focused on allegations that Waters contacted Segal four times, and asked for special consideration in the cases of Houdini Lock & Safe v. Donegal Investment Property Management Services, Commonwealth v. Khoury and City of Philadelphia v. Rexach, a tax enforcement case against Roca’s son, Ian Rexach.
The CJD found that Roca’s actions brought her office into disrepute, prejudiced the proper administration of justice and failed to promote confidence in the integrity and impartiality of the judiciary.
Roca contacted Waters in 2012, seeking to enlist his aid in having the tax enforcement complaint issued against her son dismissed, according to the CJD’s October 2016 opinion. She asked Waters to intervene in the matter by contacting Segal, which he did. Segal later told Waters that she “took care of it,” and the case was ultimately withdrawn by another judge without prejudice.
Roca, Waters and Segal were unknowingly being recorded by the FBI during their phone calls.
The joint petitions in support of discipline on consent for both Roca and Segal noted that, unlike most Pennsylvania judges who have been removed from the bench in the past, neither were ever charged with or convicted of a crime, and neither engaged in criminal conduct.
Still, the board found their cases were most closely related to that of former Lancaster County Magisterial District Judge Kelly Ballentine, who was suspended on consent for one year for dismissing her own traffic tickets in 2010 and 2011.
The board said there were differences between Ballentine’s case and those of Segal and Roca. For one, Ballentine pleaded guilty to three counts of misdemeanor tampering charges. For another, Ballentine was suspended from the bench for 15 months and placed on probation for 18 months, while Segal and Roca were both removed and barred from office.
However, the petitions said, all three former judges engaged in misconduct that benefited themselves.
“While there are variance’s between Ballentine’s and respondent’s case,” both petitions said, “in looking at all the factors, and the sanctions imposed by the Court of Judicial Discipline, there is support that a one year and one day suspension is appropriate in respondent’s case, and will subject respondent to the requirements of reinstatement pursuant to Rule 218, Pa.R.D.E.”
Roca’s attorney, Samuel Stretton of West Chester, said his client and the Office of Disciplinary Counsel had initially agreed to a one-year suspension, but the Disciplinary Board rejected that agreement.
“I thought it was wrong but it wasn’t worth fighting,” Stretton said, noting that the license reinstatement process can begin as early as eight months before the final day of suspension. “I’ll start her reinstatement in four months and I don’t think there’s any question that she’ll be reinstated.”
Counsel for Segal, Stuart Haimowitz of Philadelphia, could not immediately be reached for comment.
Wednesday, April 3, 2019
Dan Trevas reports a decision of the Ohio Supreme Court
The Ohio Supreme Court today publicly reprimanded a Mahoning County probate judge for taking action as a judge on cases in which he previously served as a lawyer. The Court noted there was no evidence that Rusu’s misconduct caused any measurable harm or that it “resulted in anything less than the evenhanded administration of justice.”
Robert N. Rusu Jr. was appointed as a Mahoning County Probate Court judge in July 2014 and won election to the office in November 2014. The Office of Disciplinary Counsel filed a complaint against Rusu in May 2018 alleging he violated several rules governing the conduct of Ohio judges by presiding over cases in which he previously served as an attorney and failing to promptly notify multiple clients that once he was appointed to office, he was terminating his representation of them.
The Supreme Court’s per curiam opinion noted the parties stipulated to the facts and that Rusu committed two rule violations. The Board of Professional Conduct agreed with the parties and recommended the Supreme Court issue a public reprimand.
Chief Justice Maureen O’Connor and Justices Sharon L. Kennedy, Judith L. French, Patrick F. Fischer, Michael P. Donnelly, and Melody J. Stewart joined the opinion. Justice R. Patrick DeWine did not participate in the case.
Executor Representation Illustrates Wrongdoing
Rusu’s misconduct arose from his representation of Beth Ann Malone in her capacity as the executor of her aunt’s estate and his subsequent involvement as the judge assigned to that case. Rusu began representing Malone in 2012. Malone’s mother was to receive two timeshares and a cash distribution of $3,851, but she allowed her daughter to have the timeshares. In May 2014, Malone informed Rusu’s paralegal that she had used the entire $3,851 for her own benefit, believing her mother had opted not to accept any part of her aunt’s estate and allow Malone to keep it. The paralegal informed Malone that was not the case, and Rusu instructed her to immediately reimburse the estate.
In July 2014, Rusu informed Malone that as a result of his judicial appointment he no longer would be her attorney, but that his former law office associate, Charlene Burke, would continue to serve as her counsel.
In February 2016, Malone and Burke were ordered to appear before the probate court to explain why they had failed to timely file a status report regarding the estate. Rusu adopted a probate court magistrate’s decision in the matter. A visiting judge presided over the remainder of the case. At his disciplinary hearing, Rusu admitted he was aware of previously representing Malone in the probate case. But he did not initially believe his conduct would create an appearance of impropriety because all the parties were represented by lawyers, they agreed to the resolution of the case, and they never formally appeared before him.
Similar to the Malone incident, Rusu and the disciplinary counsel identified about 170 other cases in which Rusu served as a lawyer then took some action after becoming a judge. More than 120 of those actions involved a deputy clerk issuing form letters or notices bearing Rusu’s signature, or the stamping of Rusu’s name to certain filings after reviewing them for accuracy.
Other cases involved the waiver of certain annual reporting requirements and the settlement of undisputed matters, the appointment of fiduciaries, and the approval of guardian and attorney fees. The parties agreed that Rusu violated the rule requiring judges to act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary and to avoid the appearance of impropriety. He also violated the rule requiring him to disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
Judge Delayed Notification to Former Clients
The Board of Professional Conduct also found Rusu notified a number of clients that he had been appointed to the bench, that he sold his share of his law practice, and that he was terminating his representation. He offered them the services of other attorneys at his former law firm. However, he remained the attorney listed on a large number of open, but largely dormant, estates and guardianships.
Rusu failed to promptly notify many of the clients with dormant cases that he had been appointed to the bench and did not give those clients the opportunity to employ other lawyers or request the return of their files. Therefore, the board found Rusu violated the rule requiring that a lawyer withdrawing from representation take steps to protect a client’s interest.
When considering the appropriate sanction for Rusu’s misconduct, the board noted that he took responsibility for his actions, did not harm his clients, and implemented measures to prevent himself from inadvertently presiding over any other matter in which he participated in his private practice.
“Nothing in the record indicates that Rusu’s misconduct that is at issue in this case caused measurable harm to any litigants or resulted in anything less than the evenhanded administration of justice,” the opinion stated. “By performing judicial functions in the same cases in which he had previously represented clients, however, Rusu created an appearance of impropriety that adversely reflected on the independence, integrity, and impartiality of the judiciary—even though many of his actions were ministerial in nature.”
The Court agreed that a public reprimand was appropriate and ordered Rusu to pay the costs of the disciplinary proceedings.
Monday, April 1, 2019
The New York Commission on Judicial Conduct has admonished a non-attorney town court justice.
Respondent has been a member of the Capital District Board of Women's Basketball Officials ("referees' association") since 1972 and, in connection with that organization, assigns referees to officiate over high school girls' basketball games; he has also been a referee himself. He assigned two referees, Dan Dineen and John Kelleher, to officiate over a junior varsity girls' basketball game at the Argyle Central School on January 29, 2016.
Perhaps one of the involved teams is the Argyle Socks?
The legal dispute
At the conclusion of that game, a spectator, D. F., was allegedly involved in an altercation with Mr. Dineen and Mr. Kelleher. Later that evening, Mr. Dineen reported the incident to respondent by email, including that police had been called to the scene. As a result of the incident, Mr. F. was charged with Unlawful Imprisonment in the Second Degree, a class A misdemeanor. and Harassment in the Second Degree. a violation, and was issued an appearance ticket directing him to appear in the Argyle Town Court on February 9, 2016.
The judicial violations
By contacting the judge who was handling a case involving two referees who were allegedly accosted after a high school basketball game, respondent a long-time member of the referees' association who had assigned the referees to the game, lent the prestige of judicial office to advance private interests in violation of established ethical standards (Rules, § 100.2[C]). As the Court of Appeals has stated:
"[N]o judge should ever allow personal relationships to color his conduct or lend the prestige of his office to advance the private interests of others. Members of the judiciary should be acutely aware that any action they take, whether on or off the bench, must be measured against exacting standards of scrutiny to the end that public perception of the integrity of the judiciary will be preserved. There must also be a recognition that any actions undertaken in the public sphere reflect, whether designedly or not, upon the prestige of the judiciary. Thus, any communication from a judge to an outside agency on behalf of another, may be perceived as one backed by the power and prestige of judicial office." [Internal citations omitted.] Matter of Lonschein, 50 NY2d 569, 571-72 (1980). Regardless of a judge's intent, such communications may convey an appearance of misusing the prestige of judicial office for personal advantage, and judges "must assiduously avoid those contacts which might create even the appearance of impropriety" (Id at 572; Rules, § 100.2).
The moment that respondent learned, on the day of the incident, about the altercation involving the referees in which police had been called to the scene, he should have realized that as a judge, especially in the same county, he should refrain from any involvement in the matter that, intentionally or not, would telegraph that a judge was interested in the case. Instead, throughout the pendency of the criminal matter, he repeatedly interjected himself into the case in an apparent attempt to monitor its progress and, in doing so, repeatedly signaled his interest in the matter to those who were directly involved in it, including the presiding judge. Whether he was acting on behalf of the referees' association or on his own, his conduct was inconsistent with the high ethical standards required of him as a judge.
Commission counsel had sought removal from office. (Mike Frisch)
Friday, March 22, 2019
The Nevada Supreme Court administratively closed a judicial discipline matter involving a now-resigned judge.
The Reno Gazette Journal reported
A suspended Washoe County family court judge will resign his post at the end of the month and is barred from judicial office.
The Nevada Commission on Judicial Discipline ordered David Humke to voluntarily step down from his judgeship while also prohibiting him from serving in any future judicial role, according to a court order filed in the Nevada Supreme Court on Jan. 14. As part of the agreement, Humke admits to all the allegations brought against him and waives his right to an appeal.
“(Humke) will voluntary resign from his judicial office, effective Jan. 31, 2019 (and is) barred from serving in a judicial office in the future,” the court order stated.
Humke has been under fire for mishandling child support and custody cases during his tenure, causing the family court judge to be suspended more than once.
Humke, who has been on the bench for three-and-a-half years was first suspended for three months starting on July 1 after an investigation found that he “significantly lacked the requisite knowledge and ability” to perform the duties of a family court judge. The disciplinary commission also found that his department only processed a tenth of the cases typically processed by other departments.
During his suspension, the judge who was charged with overseeing Humke’s family law docket, Deborah Schumacher, found even more issues, including orders that were either incorrect or incomplete in several child support and custody cases. Humke was subsequently ordered to receive mentorship from Schumacher upon his return so he could obtain the knowledge required for him to properly do his job.
Even after he returned from suspension, however, Humke continued to demonstrate lack of knowledge and due diligence, the commission found. As a result, Humke was suspended once again.
Humke was found to have repeatedly abdicated his duty to decide cases by inappropriately delegating responsibility to others, even after being told by senior judge Schumacher not to do so.
Humke also demonstrated lack of proper judicial decorum on the bench, leading to the filing of a joint complaint by a chief deputy public defender and a chief deputy district attorney for his behavior toward a traumatized juvenile litigant, according to the filing. The commission found that Humke failed to properly supervise his judicial assistant as well, causing problems with customer service, gathering case statistics and entering orders in a timely manner.
Humke is a former Republican member of the Washoe County Commission. The Reno Gazette Journal has reached out to Humke for comment.
Monday, March 4, 2019
The Maryland Court of Appeals heard oral argument today in a judicial discipline matter.
The court clearly is concerned about the extent to which off-the-bench displays of temper warrant judicial sanction (video of oral argument can be found here).
The Baltimore Sun reported
Baltimore District Court Judge Devy Patterson Russell screamed at fellow judges, intentionally pushed a courthouse staffer and neglected more than 100 search warrants left in boxes and drawers, the state commission that oversees the courts has found.
Russell, a 12-year veteran of the bench, should be suspended immediately for six months, the Commission on Judicial Disabilities recommended last week.
“The comments and behaviors of Judge Russell were undignified, uncooperative, discourteous, demeaning, and clearly demonstrate a pattern of serious violations of the Maryland Code,” the commission members wrote.
Russell’s off-the-bench actions violated state law requiring judges be patient, dignified and courteous, they found.
Thursday, February 28, 2019
The Nevada Supreme Court denied a writ of prohibition sought by a hearing master accused of inappropriate conduct on the bench
Henry is a hearing master for the family courts in the Eighth Judicial District Court (EJDC) of Nevada. On October 10, 2016, Henry presided over a hearing in the juvenile court for EJDC, wherein she allegedly acted inappropriately. Four days later, Judge William Voy informed Henry that he had consulted with Presiding Judge Charles Hoskin and Chief Judge David Barker. Judge Voy had listened to the recording of the hearing, and the three determined that Henry's actions were improper. They administered a one-week suspension without pay. On October 10, 2017, the Commission filed a formal statement of charges for Henry's conduct. Henry is challenging the Commission's jurisdiction.
The court held that hearing masters are subject to its disciplinary authority
Henry's argument is unpersuasive because the authorities cited are inapposite to her proposition that the Commission was not created with the intent to have jurisdiction over hearing masters.
The case is JENNIFER HENRY, Petitioner, vs. NEVADA COMMISSION ON JUDICIAL DISCIPLINE, Respondent. (Mike Frisch)
A non-attorney town court justice was censured by the New York Commission on Judicial Conduct
As set forth below, on April 26, 2017, while presiding over People v Tysean Harris, respondent denied defense counsel's request to adjourn the defendant's preliminary hearing on drug and traffic charges, notwithstanding that defense counsel had an actual engagement in another court; conducted the preliminary hearing in the absence of counsel; and failed to advise Mr. Harris of his rights as required by law. During the preliminary hearing, prior to giving Mr. Harris an opportunity to cross-examine the prosecution's witnesses, respondent found reasonable cause to believe that he had committed a felony.
Respondent has been cooperative with the Commission throughout its inquiry.
Respondent now recognizes and appreciates that a judge must ensure that the due process rights of defendants are accorded before decisions are rendered, including the right to have one's counsel present at all critical stages of a proceeding.
Dan Trevas reports a decision of the Ohio Supreme Court
A former Scioto County Common Pleas Court judge was suspended from the practice of law for six months by the Ohio Supreme Court today for attempting to influence an Ohio State Highway patrolman and juvenile court to drop a speeding charge against his daughter.
In a per curiam decision, the Supreme Court found William T. Marshall violated several rules governing the professional conduct of Ohio judges. Marshall, who was publicly reprimanded by the Court in 2015 after pleading guilty to operating a motor vehicle while intoxicated, resigned from the bench in March 2018 after acknowledging his recent conduct was inappropriate.
Chief Justice Maureen O’Connor and Justices Sharon L. Kennedy, Judith L. French, Patrick F. Fischer, Michael P. Donnelly, and Melody J. Stewart joined the opinion. Justice R. Patrick DeWine did not participate in the case.
Daughter Puts Judge on Phone with Trooper
In September 2016, Marshall’s then 17-year-old daughter, identified in court records as A.M., was stopped in Scioto County by Patrol Sergeant David Stuart. A.M. immediately identified herself as the daughter of “Judge Marshall.” During the stop she called her father and handed Stuart the phone. Stuart informed Marshall he stopped his daughter for speeding and that she was 14 mph over the speed limit and was driving with expired tags. Marshall disputed that the tags were expired. Stuart issued A.M. a speeding ticket and gave her a warning for the expired tags.
The traffic case was assigned to a juvenile court magistrate. Shortly after the assignment, Marshall attempted to discuss his daughter’s ticket with an assistant county prosecutor, who was in his courtroom on an unrelated matter. Marshall told the prosecutor that he did not like Stuart.
“I didn’t like the trooper. He didn’t listen to me. There used to be a code in this county — I’m a judge and he shouldn’t have written my daughter [a ticket],” he said.
Feeling pressured by Marshall’s insistence on talking about the ticket rather than the cases at hand in his courtroom, the assistant prosecutor asked Scioto County Prosecuting Attorney Mark Kuhn to handle A.M.’s case.
Judge Appears with Daughter
About a month after the ticket was issued, Marshall asked the magistrate to appoint an attorney to represent A.M. and during an off-the-record conversation with the magistrate, Marshall told her that the trooper was rude to him and that he “wanted to get the trooper in trouble.” The magistrate agreed to several continuances and eventually was able to conduct a pretrial conference in August 2017.
Days before a September 2017 hearing on the ticket, Marshall told Kuhn he would like to meet with Stuart, and if the prosecutor could make it happen, he would instruct his daughter to plead guilty. If the trooper did not meet with him, he said the case would go to trial.
Stuart, who was on medical leave, did not return calls from Marshall and did not meet with him. A.M.’s trial was rescheduled for November 2017, and Marshall approached Stuart before the trial and called him a vulgar name.
Stuart took the stand, and Kuhn questioned him about stopping A.M. Marshall interjected during the questioning, and the magistrate admonished Marshall for his behavior.
Judge Takes the Stand
After the close of the prosecution’s case, Marshall told A.M.’s attorney he wanted to testify. He claimed he was qualified as an expert witness regarding the calibration of police radar based on his employment as a city prosecuting attorney, a positon he last held in 1994. He testified he had “gone to the state academy on many occasions to be taught how the radar unit works.” Marshall insisted the only way Stuart could prove his radar was accurate was if Stuart brought the tuning forks he used to test the radar to court. Marshall insisted the trial be continued until that happened.
The magistrate was prepared to immediately rule in the case, but the prosecutor asked for the decision to be issued in writing and delayed. He explained that he had an upcoming felony criminal matter before Marshall and did not want an adverse decision on the ticket to impact the judge’s decision in the upcoming case.
The magistrate delayed the decision until December 2017. She found A.M. to be a juvenile traffic offender and set the final disposition hearing for January 2018. Before the final hearing, Marshall called the magistrate and asked if she ever had an expert on radar testify, arguing that she could not rule against A.M. unless an expert testified to the accuracy of the radar. The magistrate did not answer his question, and he accused her of questioning his credibility before hanging up.
The magistrate announced her decision and imposed court costs. Marshall asked if the penalty included points on A.M.’s license, and the magistrate indicated it would.
“So I have to pay the insurance for it,” Marshall stated.
Sanctions Sought for Judge’s Conduct
Three months later, the Office of the Disciplinary Counsel filed a complaint with the Board of Professional Conduct charging Marshall with misconduct arising from his conduct in his daughter’s traffic case. The parties entered a “consent-to-discipline” agreement and stipulated that Marshall violated several judicial-conduct rules, including failing to act at all times in a manner that promotes public confidence in the judiciary, abusing the prestige of judicial office, and exhibiting bias or prejudice in the performance of his judicial duties.
The board recommended that Marshall be suspended for six months and noted that he had resigned from the bench. The Supreme Court adopted the board’s recommendation.
Monday, February 18, 2019
The Louisiana Supreme Court has ordered judicial disqualification
IT IS ORDERED, ADJUDGED AND DECREED that Justice of the Peace Terri M. Crosby, Ward 6, Tangipahoa Parish, State of Louisiana, be and she hereby is disqualified from exercising any judicial function during the pendency of further proceedings in this matter, pursuant to La. Const. art. V, § 25(C) and Supreme Court Rule XXIII, § 27. This order shall be effective immediately.
WBRZ 2 reported last December
A Tangipahoa Parish justice of the peace was indicted this week on charges related to allegations she and another woman tried to illegally block an elderly woman's family from their inheritance upon the woman's death.
In all, Terri Crosby, the justice of the peace in the Tickfaw area, was indicted on four different charges. When reached by phone Wednesday, Crosby refused to discuss the charges or the situation surrounding the allegations.
Crosby maintained she was never questioned and hasn’t had “so much as a speeding ticket” before the grand jury in Tangipahoa Parish indicted her Tuesday.
The WBRZ Investigative Unit learned Cosby faces a felony theft over $25,000 charge, cruelty to the infirmed, exploitation of the infirmed and one count of money laundering.
Crosby refused to elaborate when reached on the phone and referenced a prepared statement she gave to the Hammond newspaper: "This indictment has absolutely nothing— zero — to do with my duties as an elected justice of the peace. I am completely innocent of any wrongdoing.”
In the statement, Crosby said the criminal indictment comes after a civil issue, but she refused to explain herself.
She continued to complain about not being given an opportunity to be questioned ahead of a criminal indictment.
“I have never ever been asked one question by any law enforcement agency until the grand jury was set,” she wrote. “This has taken a toll on me and my family, especially this time of year.”
But, the state attorney general said the allegations are especially concerning. Authorities said Crosby transferred property and finances of an 87-year-old woman with dementia into her control to claim ownership when the woman died. Doing so would deny the victim's family the inheritance, a spokesperson for Louisiana Attorney Jeff Landry told WBRZ.
The attorney general's office became involved when the district attorney in Tangipahoa Parish recused himself.
"...Elder fraud is an unlawful and immoral act and our office is committed to finding those who take advantage of our citizens," Landry said in a statement released to WBRZ.
Crosby’s attorney did not answer calls Wednesday.
Regina Raiford was also indicted in the case, the attorney general's office revealed.
Thursday, February 14, 2019
A recent opinion from the Florida Judicial Ethics Advisory Committee
Whether a judge may allow an adult child living in the judge's home to be employed part-time by a local criminal defense attorney.
The inquiring judge's eighteen-year-old child, who is a senior in high school, has been offered a short-term, part-time position with a criminal defense attorney who practices in the same county as the inquiring judge. The precise nature of the work is unspecified, but the inquiring judge informs us that it will likely be administrative or clerical. Moreover, the hiring attorney has indicated to the inquiring judge that the child would not be allowed to work in any way on any cases that the judge presides over or attend court when the judge is presiding.
The commentary to Canon 3E(1) further states:
[A] judge is disqualified whenever the judge's impartiality might reasonably be questioned, regardless of whether any of the specific rules in Section 3E(1) apply. . . . A judge should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification. The fact that the judge conveys this information does not automatically require the judge to be disqualified upon a request by either party, but the issue should be resolved on a case-by-case basis.
"[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." Fla. JEAC Op. 07-16. Here, the short-term, part-time, administrative position described by the inquiring judge would not appear to reflect any more than a de minimis interest in the firm and any proceedings involving the firm. And the inquiring judge has indicated that the child's employment will not entail any participation at all in cases before the inquiring judge. Accordingly, disqualification would not automatically be triggered unless the judge's impartiality might otherwise be reasonably questioned. See Fla. JEAC Ops. 07-16, 07-11, 02-15. However, the inquiring judge should remain vigilant to the possibility that the child might participate indirectly in cases over which the judge is presiding. As we stated in Fla. JEAC Op. 07-11, "disclosure is not necessary unless the judge believes that the judge's impartiality might reasonably be questioned. . . . This would appear to be the case only if" the judge's relative "was directly or indirectly involved" in a case pending before the judge. See also Fla. JEAC Op. 07-16, 12-02.
Wednesday, February 13, 2019
A former judge has been disbarred by the New York Appellate Division for the Second Judicial Department, which concluded that his judicial misconduct warranted his removal from the legal profession.
Charge one alleges that the respondent, a former justice, inter alia, of the Village Court of the Village of Spring Valley, was removed from the bench, based on the factual findings made by the Commission, which were sustained by the New York Court of Appeals, that the respondent engaged in judicial misconduct, and that by virtue of that judicial misconduct, the respondent engaged in conduct prejudicial to the administration of justice, in violation of rule 8.4(d) of the Rules of Professional Conduct (22 NYCRR 1200.0).
By per curiam opinion and order dated October 20, 2016, the Court of Appeals sustained the Commission’s factual determinations and accepted its recommendation that the respondent be removed from the bench. The Court of Appeals held:
“The record reflects that, among other things, [the respondent] used a sanction—a tool meant to ‘shield’ from frivolous conduct—as a ‘sword’ to punish a legal services organization for a perceived slight in an inexcusable and patently improper way. The record is also replete with instances in which [the respondent] used his office and standing as a platform from which to bully and to intimidate. To that end, it is undisputed that [the respondent] engaged in ethnic smearing and name-calling and repeatedly displayed poor temperament—perhaps most significantly, by engaging in a physical altercation with a student worker.” “Those actions are representative of an even more serious problem. [The respondent]—in what allegedly was a grossly misguided attempt to motivate—repeatedly threatened to hold various officials and employees of the Village of Spring Valley in contempt without cause or process. Those threats ‘exceeded all measure of acceptable judicial conduct’ (Matter of Blackburne [State Commn. on Jud. Conduct, 7 NY3d 213, 221 ), and we are particularly troubled by the testimony of one court officer, who suggested that
[the respondent’s] threats were so common that they became ‘a joke.’ The matter may have been a laughing one to that officer, but it was not to others.” “Significantly, too, [the respondent’s] hectoring extended beyond the courthouse. In what ostensibly was an attempt to undermine a former co judge and an apparent political adversary, [the respondent] willfully injected himself into the political process involving the election of an office other than his own. All of the foregoing actions reflect a pattern of calculated misconduct that militates against [the respondent’s] assertion that the misbehavior complained of will not be repeated if he is allowed to remain on the bench. [The respondent’s] misconduct apparently was tempered only by the intervention of the Commission, and at the hearing held with respect to this matter he appeared unrepentant and evasive, testifying falsely on at least two occasions in an attempt to minimize his misconduct—all of which renders suspect his guarantees of better behavior” (Matter of Simon [State Commn. on Jud. Conduct], 28 NY3d at 39-40 [citation omitted]).
Based on the findings of the Court of Appeals that the respondent “used his office and standing as a platform from which to bully and to intimidate, . . . engaged in ethnic smearing and name-calling and repeatedly displayed poor temperament—perhaps most significantly, by engaging in a physical altercation with a student worker, . . . repeatedly threatened to hold various officials and employees of the Village of Spring Valley in contempt without cause or process, . . . [and] injected himself into the political process involving the election of an office other than his own” (id. at 39),—misconduct qualifying as “truly egregious” (id. [internal quotation marks omitted]), we find that a disbarment is warranted (see Matter of Mogil, 250 AD2d 343). Most disturbing, notwithstanding the passage of time, the respondent continues to lack insight into the effect of his behavior, and continues to fail to recognize the inappropriateness of his actions or attitudes. The respondent’s misconduct, inappropriate and unacceptable as a judge, is equally inappropriate and unacceptable as an attorney and counselor-at-law.
Tuesday, February 12, 2019
The Ohio Supreme Court imposed a fully-stayed one-year suspension of a judge who previously had been reprimanded for criticizing in open court a jury's not guilty verdict.
In a complaint certified to the Board of Professional Conduct on December 4, 2017, relator, disciplinary counsel, alleged that Salerno’s conduct in two criminal cases she presided over violated the Code of Judicial Conduct. The parties stipulated to the admission of facts, aggravating and mitigating factors, and 11 exhibits. Salerno agreed that she failed to act in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary and avoids the appearance of impropriety; failed to uphold and apply the law and perform the duties of her judicial office in a fair and impartial manner; and engaged in ex parte communications.
In a felony case
Based on [defense counsel] Brehm’s ex parte communications, Salerno reconsidered Mendoza’s bail and then telephoned the clerk’s office and lowered the amount from $350,000 to $85,000. Mendoza posted bond and was released from custody later that day. But Salerno never informed the prosecutor of Brehm’s ex parte communications or the fact that she had reduced Mendoza’s bond; instead, the prosecutor learned of Mendoza’s release through the media.
In a traffic case
At her disciplinary hearing, Salerno testified that after her efforts to assist the parties in reaching a plea deal proved unsuccessful, she tried the improper-turn case. She explained that she attempted to achieve what she believed was a “fair” result by finding Toe guilty of that offense, in the hope that the prosecutor would then agree to dismiss the slow-speed case. She candidly admitted that she became frustrated when the prosecutor—whom she described as “brand new,” “overzealous,” “abrupt,” and “rude”—rejected her proposed resolution and that that frustration probably led her to change her guilty finding in Toe’s improper turn case. Noting that there was no dispute that Salerno’s frustration and loss of her temper changed the outcome of that case, the board agreed that her conduct violated Jud.Cond.R. 1.2 and 2.2 (requiring a judge to uphold and apply the law and to perform all duties of the judicial office fairly and impartially).
the board concluded that the appropriate sanction for Salerno’s misconduct is a one-year suspension, stayed in its entirety on the conditions that she (1) complete a minimum of six hours of CLE focused on judicial ethics that includes training specifically related to proper judicial demeanor, civility, and professionalism, in addition to the CLE requirements of Gov.Bar R. X and Gov.Jud.R. IV, (2) engage in no further misconduct, and (3) pay the costs of this proceeding. We agree.
Wednesday, February 6, 2019
The Minnesota Supreme Court affirmed a murder conviction notwithstanding an ex parte communication between the judge and defense counsel
Immediately before opening statements, an ex parte conversation occurred between Mouelle’s trial counsel ("Counsel") and the district court judge in chambers in the presence of the court reporter. During the conversation, Counsel informed the court that if Mouelle chose to testify, Counsel was "going to have to . . . do as well as [he could] under Whiteside." Counsel also told the court that he and Mouelle could not agree on whether Counsel should give an opening statement before the State presented its evidence. In describing the disagreement, Counsel quoted parts of a conversation that he had with Mouelle. Based on the ongoing disagreement, Counsel explained that he would request a short recess after the prosecutor’s opening statement. The judge said, "I’m not going to comment any further about your conversations with your client as they are privileged. We will take a recess after the prosecution’s opening statement . . . and you can let me know if you’re ready."
The State gave its opening statement and, as promised, the court took a brief recess. Counsel then gave an opening statement. After the State rested its case, Mouelle chose to testify. Counsel presented Mouelle’s testimony in the traditional question-and-answer format.
Not reversible error
we conclude that an objective, unbiased layperson with full knowledge of the facts and circumstances would not question the district court’s impartiality. After the ex parte conversation ended, Counsel’s concerns were never again mentioned during the remainder of the jury trial. Critically, the jury—the fact finder here— was never exposed to the concerns about Mouelle’s testimony that Counsel raised during the ex parte conversation.5 Moreover, Counsel’s decision to present Mouelle’s testimony in the usual question-and-answer format suggests that Counsel’s Whiteside concerns, as well as his disagreement with Mouelle, had been resolved before Mouelle testified. Certainly nothing in the manner that Mouelle’s testimony was presented suggested to the jury that anything was amiss. And, as discussed in more detail below, the record does not reflect any behavior by the district court that would lead a reasonable examiner, with full knowledge of the facts and circumstances, to question the judge’s impartiality. Consequently, we conclude that Mouelle failed to establish that the Code of Judicial Conduct required the district court judge to recuse herself. Because Mouelle failed to show even the appearance of partiality, we hold that no error occurred, structural or otherwise, when the district court judge presided over his jury trial.
Nix v. Whiteside, of course, is a United States Supreme Court decision. (Mike Frisch)
Wednesday, January 30, 2019
Must an elected judge be forever recused from presiding over cases litigated by his erstwhile opponent and the loser's law firm?
Nope, according to the Florida Judicial Ethics Advisory Committee
It being clear that disqualification is required during a campaign, the question then becomes the length of time after the election for which disqualification continues to be required. The law presumes that, after an election is over and a reasonable period of time has passed, a judge would not harbor such ill will that it would prevent the judge from impartially considering cases presented by the former opponent. See City of Lakeland v. Vocelle, 656 So. 2d 612 (Fla. 1st DCA 1995); McDermott v. Grossman, 429 So. 2d 393 (Fla. 3d DCA 1983). Even though no personal animosity may exist, this committee, in JEAC Op. 84-23, has suggested that it would be appropriate for a judge to disqualify himself “for a reasonable period of time, perhaps two years, until you believe that, considering all the circumstances of which you are more aware than we on the committee, your impartiality cannot reasonably be questioned.”
The committee continues to feel that, while a two-year disqualification period should not be adopted as a bright-line rule due to the many varying circumstances which may be involved, two years would normally allow a sufficient passage of time to allay any lingering concern that a judge might either “rule too harshly, or ‘bend over backwards’ to rule favorably in a case involving a former opponent.” See JEAC Op. 84-23.
In the present case, where four years have passed since the election, the judge should consider whether any particular circumstances exist that could cause either the judge or the litigants to reasonably question the judge’s ability to rule impartially. If no such circumstances exist, it would be appropriate for the judge to rescind the earlier blanket disqualification order and to consider any further motions for disqualification made by a former election opponent or the opponent’s law partner on a case-by-case basis in order to determine whether specific facts are alleged which would warrant disqualification.
The committee further suggests that judges faced with similar issues in the future consider the procedures discussed in Holt v. Sheehan, 122 So. 3d 970 (Fla. 2d DCA 2013) and the comments made by the courts in Ginsberg v. Holt, 86 So. 2d 650 (Fla. 1956) and R.M.C. v. D.C., 77 So. 3d 234 (Fla. 1st DCA 2012) concerning the use of blanket orders of disqualification.
The inquiring judge faced a contested judicial election in 2014. After the judge was elected, the judge entered an order in January 2015 disqualifying the judge from hearing all cases in which the campaign opponent or law partner were involved. The order was entered almost four years prior to the judge’s inquiry to this committee, but contains no expiration date.
The judge was recently assigned to a case in which the judge's former campaign opponent represents one of the parties. The former opponent filed a copy of the disqualification order and has announced his intention to seek disqualification of the judge, based on the 2015 order.
The judge requests an opinion advising whether a judge must forever disqualify himself or herself from cases involving a former campaign opponent or opponent’s partners or if it is appropriate to now rescind the order of disqualification entered by the judge soon after the election.
(Mike Frisch )
Wednesday, January 23, 2019
A recent opinion of the Florida Judicial Ethics Advisory Committee
Opinion Number: 2019-02
Date of Issue: January 14, 2019
1. May a sitting judge film a pilot for a law-related television show?
ANSWER: Yes, as long as doing so does not cast reasonable doubt on the judge’s capacity to act impartially, demean the judicial office, or interfere with the proper performance of judicial duties.
2. May a sitting judge participate in the taping of a television pilot if the same is being filmed in another state, and accept compensation and travel reimbursement?
ANSWER: Yes, keeping in mind annual ethics disclosure requirements of compensation and/or gifts received by sitting judges.
3. May a sitting judge participate as the television judge and remain on the bench if an offer is extended by the producers of the television show?
The inquiring judge has been invited to audition for a television pilot. The proposed television show will feature a judge who presides over pro se civil cases. The litigants agree to have their small claims cases resolved by the television show’s presiding judge. The pilot and series will be taped and produced outside of Florida. The pilot will only be viewed by television executives and not made public. Auditioning for the one pilot would not contractually bind the inquiring judge. An offer of compensation and reimbursement for travel expenses for filming the pilot was extended. If, after reviewing the pilot, the television executives extend an offer to the inquiring judge, this would open the door for further negotiations, including compensation arrangements with the producer of the show. The inquiring judge asks whether he/she can audition for the pilot, accept payment and travel reimbursement; and if offered the television judge role, whether he/she may also remain on the judicial bench.
After a lengthy discussion
On the questions related to the television pilot, the Committee finds that a one-time, private audition outside of Florida and receipt of related compensation and reimbursement for travel expenses would not be prohibited. The Committee recommends however, the following if the inquiring judge elects to film the pilot: 1) to carefully consider the eight questions above as events unfold with producer of the show; 2) at all times conduct herself/himself so as to not demean the judicial office or cast reasonable doubt on her/his capacity to act impartially; 3) schedule the pilot on a week-end or when it will not adversely impact or conflict with the judge’s docket or impose on other colleagues to avoid interference with the proper performance of judicial duties; and 4) to comply with annual ethics disclosure requirements of compensation and/or gifts received by sitting judges. Of course, pursuant to Canon 1, the inquiring judge must at all times maintain high standards of conduct so that the integrity of the judiciary is preserved.
If the producer of the show extends an offer, the Florida Code of Judicial Conduct would prevent the inquiring judge from entering into the proposed arrangement for compensation, while also serving as a sitting judge. The proposed arrangement would lend judicial prestige to the commercial interests of the producer in violation of Canon 2B; the activity could involve improper public comment upon a pending or impending proceeding in violation of Canon 3B; and the activity would cast reasonable doubt on the judge’s capacity to act impartially as a judge, demean the judicial office, and interfere with the proper performance of judicial duties in violation of Canons 4 and 5.
A decision yesterday of the New York Appellate Division for the First Judicial Department
Decree, Surrogate's Court, New York County (Nora S. Anderson, S.), entered on or about October 4, 2017, insofar as it denied petitioner's application for the recusal of Surrogate Anderson, directed that "Petitioner's Personal Representative" pay the fees of Charles Capetanakis, Esq., the guardian ad litem (GAL), and denied petitioner's application for reimbursement by the GAL of her attorneys' fees and expenses, unanimously modified, on the law, to the extent of remanding the matter to the Surrogate for an explanation of her reasons for the amount of the GAL fee award and directing that the GAL's fees be paid by the Estate of Kathleen Durst, and otherwise affirmed, without costs.
Petitioner failed to demonstrate that Surrogate Anderson improvidently exercised her discretion in refusing to recuse herself (see Wong v 2669 Owners Ltd., 126 AD3d 451 [1st Dept 2015]). As the Surrogate found, 22 NYCRR 151.1 does not require her recusal based on contributions made by the GAL's wife or law firm to the Surrogate's 2008 campaign. Moreover, there is no evidence that the contributions played any role in her determinations. There is also no evidence that, at the time the GAL was appointed, the Surrogate was aware of the relationship between his firm and the firm of one of respondent's attorneys, Steven I. Holm. In any event, the relationship was too attenuated to demonstrate that the GAL breached his fiduciary duty to Kathleen Durst in connection with the preparation of his report or recommendation regarding the date of her death.
On the current record, we cannot determine whether the amount of the fee the Surrogate awarded to the GAL was "reasonable compensation" (SCPA 405). The Surrogate has the sole discretion to award the GAL "reasonable compensation for his services" (Matter of Burk, 6 AD2d 429, 430 [1st Dept 1958]). This determination is governed by several criteria, including "the nature and extent of the services, the actual time spent, the necessity therefor, the nature of the issues involved, the professional standing of counsel, and the results achieved" (id.). The Surrogate "must provide a concise but clear explanation of [her] reasons for the fee award, or lack thereof" (Matter of Moriarty, 119 AD3d 445, 445 [1st Dept 2014] [internal quotation marks omitted]; see also Matter of Hultay [Ronald P.S.], 136 AD3d 572, 573 [1st Dept 2016] [holding that "proper appellate review" cannot take place if the court "failed to give a reason" for its fee award]).
Here, the Surrogate failed to provide her reasoning for the amount of the fee she awarded to the GAL. As a result, there is an insufficient record for appellate review. Accordingly, the matter is remanded to the Surrogate for a "concise but clear" explanation of her reasons for the amount of the fee award. The Surrogate's explanation should discuss the factors she considered when determining the amount that she awarded to the GAL.
Finally, without a showing of "good cause," or indeed a discussion of the issue (see SCPA 405), the Surrogate improperly directed that the GAL's fee be paid by petitioner's personal representative, rather than by the Estate of Kathleen Durst, which benefitted from the appointment. The appointment of the GAL did not result from any conduct of petitioner or her personal representative.
Tuesday, January 15, 2019
The New York Commission on Judicial Conduct admonished a Judge of the New York City Civil Court and an Acting Justice of the Supreme Court, 12th Judicial District, Bronx County
The Formal Written Complaint alleged that in August 2015 after respondent’s vehicle struck a police van, respondent asserted her judicial office to advance her private interests, pressured police officers not to complete an accident report and threatened a police officer who completed the report.
In determining the appropriate sanction for respondent’s violation of the above-cited ethical standards, we reject respondent’s argument that public discipline is unwarranted because the "private interest" she was seeking to further during the incident was relatively minor. Although the police report itself may have been inconsequential to respondent except for the resulting delay, her desire to be allowed to leave the accident scene more quickly was clearly important enough to her to warrant invoking her judicial status repeatedly at each stage of her interactions with the police, in violation of Rule 100.2(C). In view of such behavior and the totality of the circumstances as set forth above, we conclude that a public admonition is required. In imposing this sanction, we remind every judge of the obligation to abide by this important ethical mandate