Legal Profession Blog

Mississippi Removes Judge With A "Resounding" Dissent

The Mississippi Supreme Court removed a judge over social media posts and comments on the Kelly Clarkson Show

The Mississippi Commission on Judicial Performance (the Commission) brings this case against Municipal Court Judge Carlos Moore relating to social media posts and public comments by Moore that they allege violated Article 6, Section 177A, of the Mississippi Constitution, the Code of Judicial Conduct and a Memorandum of Understanding (MOU) between the Commission and Judge Moore. This Court finds that Judge Moore’s actions  are in violation of the Mississippi Constitution, the judicial-conduct canons and the MOU. Judge Moore is hereby removed from the bench and assessed a $3,000 fine plus costs.

Judge Moore had Facebook and twitter accounts

On November 20, 2021, Judge Moore posted on social media the following comment: If anyone still believes justice is blind in America after the Kyle Rittenhouse acquittals yesterday, you just refuse to accept an ugly truth. I can almost guarantee you that if Kyle had been black and killed two white men in the same manner Kyle did, he most certainly would have been convicted. There has never been a greater need for black lawyers and judges in America to keep decrying the blatant inequities that exist in our criminal justice system and to keep pushing for a color blind and more equitable judicial system. The account name on the post was “Judge Carlos Moore,” and the subtitle stated “President at National Bar Association.”

On June 22, 2022, Judge Moore appeared on The Kelly Clarkson Show to discuss his DO Better ASAP alternative sentencing program. On the show, when asked why his DO Better ASAP program was so important to him, Judge Moore stated:

You know, I always felt that if I got in a position of power I would try to make a difference. So many times African Americans get the short end of the stick. There are many judges that don’t look like me and the people that appear before them. They cannot be empathetic because they don’t look like the people that go before them. But I preside over two jurisdictions where there are African Americans, 85 to 90% of people look like me, and I want to give them a second chance if they qualify. The Kelly Clarkson Show: Mississippi Judge Gives Young Offenders Second Chances Thru Do Better ASAP Program (NBC television broadcast June 22, 2022),

https://www.nbc.com/the-kelly-clarkson-show/video/mississippi-judge-gives-young-offenders-second-chances-thru-do-better-asap-program/ACCN563397925.

Ensuing proceedings included allegations that the judge had made "racially divisive" remarks

On October 20, 2023, the appointed Committee met to review and determine its recommendation. On December 8, 2023, the Commission voted to approve the committee recommendation with unanimous vote, said recommendation being a public reprimand, removal from office, suspension for six years and a $5,000 fine, plus costs. The Commission brings this recommendation before the Court by way of motion.

The court

Judge Moore’s actions constituted willful misconduct that was prejudicial to the administration of justice. He has failed to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Miss. Code of Jud. Conduct Canon 2A. Judge Moore has admitted his actions but continues to argue that he has done no wrong. A great likelihood exists that Judge Moore would continue to repeat his actions. See Miss. Comm’n on Jud. Performance v. Thompson, 169 So. 3d 857, 874 (Miss. 2015). Accordingly, a harsh sanction is warranted. Id.

Judge Moore has on multiple occasions been publicly reprimanded, he has once been suspended from office for sixty days and he has been fined $1500. Moore, 356 So. 3d at 133. The Commission requests Judge Moore’s removal from the bench and a suspension for six years in addition to a $5,000 fine and public reprimand.

Judge Moore’s words were aimed at creating public distrust in the judiciary and its ability to be impartial. Judge Moore, after being warned and agreeing through an MOU to comply with the judicial-conduct canons, willfully continued in his actions that were prejudicial to the administration of justice.

We find removal from the bench to be the appropriate sanction for Moore’s actions. Because this Court has found Judge Moore violated Article 6, Section 177A, removal from the bench is permanent.

KING, PRESIDING JUSTICE, DISSENTING:

Judge Carlos Moore’s statements at issue are discussions of broad public importance at best and ambiguous at worst. Therefore, I would find that Judge Moore’s statements were protected by the First Amendment and that the Commission failed to meet the high burden of demonstrating that its interests in protecting the impartiality of the judicial system outweighed Judge Moore’s First Amendment rights. Further, because this Court alone decides what conduct of a judge is sanctionable, I would find that this Court is not bound by a memorandum created by the Commission on Judicial Performance. Accordingly, I resoundingly dissent and would dismiss the Commission’s complaint.

The dissent contends that the judge spoke on matters of public concern and is protected speech.

As to Kelly Clarkson

The majority first discusses Judge Moore’s comments on the Kelly Clarkson show. It takes issues with Judge Moore’s comment that many judges “do not look like” him and “the people that appear before them.” Judge Moore expressed concern that those judges could not be empathetic toward people of color because they do not look like those people. The majority states that “[d]iscussions about racial disparity in the legal system or the desire for greater diversity in the judiciary and legal profession are certainly matters of public concern.” Maj. Op. ¶ 30. The majority then asserts that “blatantly attacking an entire race’s ability to exhibit a core, not just judicial but human, ability is not.” Maj. Op. ¶ 30.

But the majority reads into Judge Moore’s comments and takes those comments out of context. I strongly disagree with the majority’s assertion that Judge Moore’s comments on the Kelly Clarkson Show are an attack, much less a blatant one. In fact, Judge Moore’s comments are ambiguous at worst. What is clear is that Judge Moore was invited on the Kelly Clarkson Show to discuss his Do Better ASAP (Alternative Sentencing Accountability Program), which was aimed at giving nonviolent first-time offenders a second chance to avoid entering the criminal justice system and having a criminal record.

And

A full reading of the Kelly Clarkson transcript also shows no statement of Judge Moore’s indicating that he would not treat people of other races impartially. Judge Moore stated, “[b]ut I preside over two jurisdictions where there are African Americans, 85 to 90% of people look like me, and I want to give them a second chance if they qualify.” Judge Moore did not say that he would only give second chances to African Americans. A review of the entire transcript makes clear that Judge Moore was on the Kelly Clarkson Show to discuss his Do Better ASAP program, which gives second chances not solely to black offenders but to any nonviolent, first-time offender that qualifies for the program. 

The dissent recounts a number of statements of judicial officers decrying disparate justice in our legal system

But protecting an impartial judiciary does not negate Judge Moore’s right to speak about matters of legitimate public concern, including his opinions on the lack of racial diversity in the judicial and legal system. Further, the Commission has failed to explain how Judge Moore’s ability to empathize with fellow African Americans affects the impartiality of the judicial system. This is not the rare case in which the state has demonstrated its narrowly tailored restriction. The Commission’s conclusory statements fail to establish its “very difficult burden” to show that its interest in protecting the impartiality of the judicial system outweighs Judge Moore’s First Amendment rights.

And noted disparate treatment of another Mississippi judge

Moreover, this Court previously has dismissed with prejudice judicial performance proceedings involving Judge Gay Polk-Payton, a justice court judge, who had maintained a social media presence employing the username “JudgeCutie.” En Banc Order, Miss. Comm’n on Jud. Performance v. Polk-Payton, No. 2016-JP-01685-SCT (Miss. June 15, 2017). The Commission alleged that Judge Polk-Payton had violated Canon 2A by posting numerous times in her judicial robe, and while using the username “JudgeCutie.” There, the Commission alleged that Judge Polk-Payton

maintained four Facebook pages, a Youtube account, a Twitter account, and an Instagram account. [Her] username on Instagram and Twitter was ‘Judge Cutie’. While posting on these numerous sites, [Judge Polk-Payton] posed half-robed in promotional materials, published posts about sitting on the bench with unclear hair after going to the gym, and posted a photograph wearing her robe which she titled #myuniform, to cite a few examples. Brief on Behalf of the Mississippi Commission on Judicial Performance, Miss. Comm’n on Jud. Performance v. Polk-Payton, No. 2016-JP-01685-SCT (filed Mar. 6, 2017).

The Commission additionally alleged that Judge Polk-Payton had “written inflammatory and controversial political posts[,]” namely:

I became a judge so that I could do my part [to] restore some integrity to the criminal justice system. I work hard so that by ALWAYS following the law . . . whether I agree with the law or not. We will never have a fair system of justice until private citizens stand up and honor their duty by serving as jurors for their fellow citizens AND following the law once they are sworn in as part of a petit jury. In Florida, the guilty go free but in Mississippi, those that are not guilty are convicted. Jurors and judges are the gatekeepers to the Constitution. If you can’t trust us to follow the law, there can be no justice and where there is no justice, there will be no peace. #wholeftthegateopen[10]

Following oral argument, this Court found that “no violation of the Mississippi Code of Judicial Conduct . . . has been proven by clear and convincing evidence ” and dismissed the proceedings with prejudice. En Banc Order, Miss. Comm’n on Jud. Performance v. Polk-Payton, No. 2016-JP-01685-SCT (Miss. June 15, 2017). Accordingly, based on this Court’s prior action, I would find that Judge Moore did not commit misconduct by failing to comply with MOU 1.

Oral argument linked here.

It appears that the dissenting justice is the only African American member of the court.  (Mike Frisch)

Recusal Denial Affirmed: Generic Associations No Basis To Infer Bias

The North Carolina Court of Appeals affirmed the denial of a motion to recuse a trial judge

The Myers raise multiple allegations against Judge Coward. These allegations include:

• Judge Coward and opposing counsel, Sanford Steelman, went to the same undergraduate and graduate schools, and both were members of Phi Alpha Delta (though the Myers do not suggest they were members at the same time).

• Judge Coward’s professional relationships with the retired Superior Court Judge James Downs and the retired appellate court judge, Sanford Steelman, who both have acted as opposing counsel in the various cases before Judge Coward. 

• Judge Coward and his staff refer to Steelman as “judge” due to Steelman’s retired appellate judge status, despite multiple objections by the Myers.

• Judge Coward has entered multiple rulings against the Myers’ counsel, Shira Hedgepeth, and multiple rulings related to the SMCC that negatively affect the Myers.

• The Myers believe Judge Coward has an interest in maintaining the outcome of the previous rulings he made that are now challenged in the Myer’s lawsuits.

• Attorney Shira Hedgepeth perceives Judge Coward “allows the constant belittling” of her by Steelman.

• Judge Coward signed Steelman’s proposed order after the hearing on the motion to quash subpoenas duces tecum despite attorney Shira Hedgepeth’s multiple objections and Judge Coward’s request at the hearing to include a statement of consent by both parties.

• Judge Coward denied the motion to recuse without referring the motion to another judge for review.

Looking to this Court’s previous explanations of what substantial evidence of “bias, prejudice, or interest” is, we determine the Myers have not carried their burden of objectively demonstrating that grounds exist for disqualification of Judge Coward. There must be “such a personal bias, prejudice or interest on the part of the judge that he would be unable to rule impartially.” State v. Kennedy, 110 N.C. App. 302, 305 (1993) (internal quotation marks and citations omitted). This “bias, prejudice or interest which requires a trial judge to be recused from a trial has reference to the personal disposition or mental attitude of the trial judge, either favorable or unfavorable, toward a party to the action before him.” Id. (cleaned up). Another way to consider whether bias or prejudice exists, is by considering whether “a reasonable person would question whether the judge could rule impartially.” 

In the present cases, the Myers’ contentions are based in large part upon generic factual allegations that would be common to many lawyers and judges in North Carolina: attending the same undergraduate and law schools, being members of a particular legal organization, and representing parties in other cases before a particular judge. The Myers have not demonstrated how these types of professional relationships have created any sort of improper bias or prejudice in this case. The remaining allegations are based upon rulings by Judge Coward that were opposed to the Myers’ position. These claims of bias are based at best upon “inferred perception[s]” and frustrations toward Judge Coward’s multiple rulings against them. Lange, 357 N.C. at 649.

There is no evidence of Judge Coward’s disposition toward either party, or evidence in the record of Judge Coward ever calling Steelman “judge.” In fact, all that is in the record is the Myers’ attorney calling Steelman “your Honor,” “Honorable Retired Judge Steelman,” “Retired Judge Steelman,” and “your Retired Honor.” Judge Coward repeatedly referred to Sanford Steelman as Mr. Steelman. Within the record, we only find one reference of his judicial assistant referring to Sanford Steelman as a Judge; but this was in an email, not open court, and was later followed by another email in which the assistant apologized for the judicial reference.

Further, Judge Coward was not required to refer the motion to recuse to another judge unless the allegations are such that findings of fact are necessary to consider the judge’s disqualification. See N.C. Nat. Bank v. Gillespie, 291 N.C. 303, 311 (1976) (“[W]hen the trial judge found sufficient force in the allegations contained in defendant’s motion to proceed to find facts, he should have either disqualified himself or referred the matter to another judge . . . .”).

Accordingly, there is no substantial evidence of bias, prejudice, or interest such that a reasonable person would be concerned Judge Coward could not rule impartially. Therefore, the trial court did not abuse its discretion and we affirm the trial court’s denial of the motion for recusal.

(Mike Frisch)

Victim Judge Disqualified

The Chief Judge of the Ohio Supreme Court ordered the disqualification of a judge

Basis

In 2016, Will was charged with intimidation, a third-degree felony, and disorderly conduct, a minor misdemeanor. Judge Leuthold was the alleged victim of the intimidation offense. Because Judge Leuthold was the only sitting judge of the Crawford County Court of Common Pleas, General and Domestic Relations Division, an assigned judge presided over the case. The parties entered into a plea agreement, in which Will pleaded guilty to one count of aggravated menacing, a first-degree misdemeanor. The assigned judge sentenced Will to 90 days in jail. Because Judge Leuthold was the alleged victim of the intimidation offense, the State consulted with him before entering into the plea agreement, and the judge agreed to the terms of the plea deal.

Present case

In support of the allegation, [counsel for Will] Thompson points to the fact that Judge Leuthold was the victim of the threat in Will’s 2016 case. Disqualification is necessary, Thompson asserts, because the judge’s “impartiality might reasonably be questioned.”

In response, Judge Leuthold states that because he was the victim of the threat in the 2016 case, he voluntarily recused himself from that case. However, because he is not the victim in the underlying case, he sees no reason for disqualification. The judge avers that he does not recall any of the details about Will’s 2016 case, including what Will said that led to the intimidation charge, and that until Thompson raised the issue, the judge had completely forgotten he was the victim in the case. The judge further states that he consented to Will’s plea agreement in the 2016 case because he considered Will to be relatively harmless.

Noting that since 2016 he has presided over seven other cases involving Will without any allegation of impropriety, Judge Leuthold states that “[i]f there was no appearance of impropriety in those seven cases, it is ridiculous to claim that there is an appearance of impropriety in the eighth case.”

The court

Just as a judge could be disqualified from a case when the judge is the victim of the crime alleged in the case, there may also be an appearance of impropriety when a judge presides over a case when he or she was a victim of the defendant in an earlier case. The former chief justice recognized that “an appearance of impropriety certainly could exist if a litigant appearing before a judge had previously committed a crime against that judge.” (Emphasis omitted.) DeWeese, 2017-Ohio-9421, at ¶ 5. And based on a review of the record in this case, an appearance of impropriety would be created if Judge Leuthold presided over the underlying case because the judge was previously the victim of a crime committed by Will.

Therefore, this allegation has merit, and Judge Leuthold is disqualified from presiding over the underlying case to avoid an appearance of impropriety.

Honoring The Deceased

A new opinion from the Florida Judicial Ethics Advisory Committee

Subject

A judge may sign a letter of support and speak publicly to advocate naming a new courthouse after a deceased lawyer.

Issue

May a judge sign a letter of support and speak publicly to advocate naming a new courthouse after a deceased lawyer.

ANSWER:  Yes.

Facts

A new civil courthouse was recently constructed in a Florida county.  The County Commission is charged with naming this new building.  A local bar association has published a letter, signed by several public figures and community leaders, advocating that the courthouse be named after a prominent lawyer who is now deceased (we will call him "Public Person A").  An inquiring judge wishes to know whether they can sign this letter of support to advocate naming the new courthouse after Public Person A.  They also wish to appear before the County Commission to speak publicly in favor of naming the courthouse in honor of Public Person A.  The inquiring judge informs us that other persons in the legal system are advocating naming the courthouse after a different public person, also deceased ("Public Person B").   

Discussion

We begin with the pertinent judicial canon addressing circumstances such as these, Fla. Code Jud. Conduct, Canon 5(C)(1), which provides, in pertinent part: "A judge shall not appear at a public hearing before, or otherwise consult with, an executive or legislative body or official except on matters concerning the law, the legal system or the administration of justice. . . ."   Construing this canon, this Committee has observed that judicial officers are generally prohibited "from affixing their signatures on petitions other than those that relate to the improvement of the law, the legal system or the administration of justice."  Fla. JEAC Op. 1998-07.  The question, then, is whether advocating for the name of a courthouse—whether verbally or in writing—could be construed as a "matter[] concerning the law, the legal system, or the administration of justice."  We believe that it is.

Naming a public building after an individual is not only an extraordinary honor for that person's legacy, it also reflects an expression of the values and characteristics that the public building, so named, aspires to emblemize.  Courthouses are no exception.  Indeed, courthouses throughout our State bear the names of a variety of public figures, such as the Paul G. Rogers Federal Building and Courthouse in West Palm Beach (named after a former U.S. Congressman), the George Edgecomb Courthouse in Tampa (named after Hillsborough County's first African-American county judge), and the M.C. Blanchard Judicial Building in Pensacola (named after a former chief judge in Escambia County).  Often, a courthouse named for a public figure will display a plaque or signage in a prominent place that explains that individual's biography, accomplishments, and contributions to the justice system.

In Fla. JEAC Op. 1995-43, we opined that a judge could support renaming a street for a deceased judge because renaming the street was found to be "an activity that will raise awareness of the law, the legal system, and the administration of justice."  We further stated that the inquiring judge could appear before the county commission to state their support for such a measure. If naming a street after a member of the judiciary would "raise awareness of the law, the legal system, and the administration of justice," certainly naming a courthouse after a public figure would, as well.  Accordingly, we conclude that advocating for the name of a courthouse fits squarely within Canon 5(C)(1).

Of course, the judge should remain mindful that any advocacy does not interfere with the performance of any judicial duties or cast doubt on the judge's impartiality. See Fla. Code Jud. Conduct, Canon 5(A).  Moreover, the judge must take care when advocating for the name of this courthouse not to lend the prestige of the judge's judicial office to any expressions of support.  With those caveats, we answer the judge's inquiry in the affirmative.  The opinion was unanimously approved by the committee with three members recused.

Judge Admonished For Conduct As Defendant In Small Claims Case

A town court justice who is an attorney has been admonished by the New York Commission on Judicial Conduct for his conduct in a small claims matter where a client had sued him for return of the fee

On August 31, 2021, Alden Town Court Clerk Sarah Miller sent respondent a text message about Ms. Wynecoop’s small claims application, inter alia noting that recusal would be necessary. Her message stated as follows:

Good morning Mike! Just a heads up a lady named Candace called in asking about a small claim application for a deposit she allegedly paid you at your office. We would have to recuse anyways but I just wanted to let you know.

Respondent replied via text message, inquiring about the identity of the caller. Ms. Miller then identified her as “Candace,” and then noted, “Sorry I was to[o] late, She just left here.

Respondent then asked Ms. Miller, “Did she file?” Approximately one minute later, before Ms. Miller replied, respondent sent her a text message stating, “It’s okay. I just emailed her.”

Approximately seven minutes later, in response to respondent’s having asked if Ms. Wynecoop had filed a small claims application, Ms. Miller sent a text message stating, “She did.” Approximately one minute thereafter, respondent replied, “Okay. Don’t mail me the notice. Just put in my inbox.”

Approximately one minute later, Ms. Miller texted respondent that she did not intend to draft a case notice for him because she anticipated both Alden Town Court justices would recuse themselves from Ms. Wynecoop’s case. Approximately one minute later, respondent texted to Ms. Miller that she should “Hold for a bit,” adding, “I’m gonna call her and ask her to withdraw it.”

He then discussed the matter with the client

On September 3, 2021, respondent emailed Ms. Wynecoop, confirming their discussion, informing her that he had written and mailed a check in her name for $1,515 to her Indiana mailing address, and requesting that she email him when she received his check. In both his email and letter of September 3, 2021, respondent asked Ms. Wynecoop to let the court know at her earliest convenience once the check cleared, and to request that her small claims case “be withdrawn as satisfied.”

Subsequent to his email to Ms. Wynecoop on September 3, 2021, respondent put a note in the Alden Town Court file for her, dated September 7, 2021, stating, “Candice should have received $1,515.00 from my office today,” and “Please wait until next week, and if she hasn’t called, call her and ask her if she withdraws her action.”

On October 5, 2021, in the absence of any communication from Ms. Wynecoop confirming her withdrawal of her application, respondent signed a certificate of disqualification from her case. A transfer order of the Eighth Judicial District Administrative Judge, dated October 6, 2021, moved the case to the Clarence Town Court, which set the matter down for a hearing on December 14, 2021.

On December 14, 2021, after communication from Ms. Wynecoop, respondent emailed a letter to the Clarence Town Court, with a copy via email to Ms. Wynecoop, stating that the parties had resolved their case, and neither intended to appear at court that evening.

Misconduct

Respondent acknowledges that it was improper for him as a judge to influence court staff to delay the processing of a claim filed against him by a litigant. He recognizes as well that such a claim would have to be transferred to another court because of the obvious conflict that would arise were his court to adjudicate a claim against him. Respondent also recognizes that even if his intent was to resolve the matter quickly, he effectively used his status as a judge to avoid public disclosure and the potential embarrassment of a personal lawsuit against him.

(Mike Frisch)

Recusal In Ohio

New opinions of the Ohio Board of Professional Conduct

The Ohio Board of Professional Conduct has issued two advisory opinions concerning judicial disqualification that replace prior opinions analyzing questions under the former Code of Judicial Conduct.

Advisory Opinion 2024-06 concludes that a judge must recuse from a matter when a lawyer who represents the judge in the matter is representing a party before the judge. The Board advised that if a single governmental agency represents both the judge and a party appearing before the judge, the agency can assign different lawyers to each case to avoid disqualification of the judge. This opinion replaces Adv. Op.1989-34.

In Advisory Opinion 2024-07, the Board holds that a judge is not automatically disqualified from presiding over a case when the judge’s campaign opponent appears as a lawyer before the judge. The Board reasoned that a judge is presumed to be impartial, even during an ongoing judicial campaign, and recusal is not required unless there is evidence of bias on behalf of the judge. This opinion replaces Adv. Op. 1987-23.

(Mike Frisch)

Getting Fired In The Natural State

An Administrative Order entered by the Arkansas Supreme Court on January 3 underscores the tensions among the members of that august body.

The controversy involved the authority of the newly-instated Chief Justice (the first female to ever hold the position) to terminate court staff.

Reasons recited for the order

Certain events have recently transpired that require formal, written procedures for when a court or AOC employee may be terminated. These rules will provide a transparent process for employees and court members to follow in the event that termination is required. Sunlight—in the form of a written policy—provides the best process.

The events giving rise to this order have been percolating but came to a head on January 2, 2025, when the Chief Justice of the Supreme Court of Arkansas called the Director of the Administrative Office of the Courts (“Director”) and the Director of Emergency Preparedness and Chief of Supreme Court Police (“Police Chief”) into her office for a meeting. During the meeting, the Chief Justice confronted the Director and Police Chief about their responses to Freedom of Information Act requests involving her. The Chief Justice noted that she had prepared letters of termination for the Director and Police Chief, but was unsure whether she would fire them.

The next day, January 3, the Chief Justice intercepted the Police Chief as he walked into the Justice Building and purported to fire him. The Chief Justice had also prepared termination letters for at least ten (10) other employees of the Administrative Office of the Courts, including the Director. The Director, however, serves at the pleasure of the entire court, not the Chief Justice alone. Ark. Code Ann. § 16-10-102(a)(2).

Specifically, the Chief Justice attempted to terminate the following employees:

• Director of Administrative Office of the Courts; • Director of Emergency Preparedness and Chief of Supreme Court Police; • Juvenile Justice Division Director; • Director of Alternative Dispute Resolution Programs and Director of Judicial Education; • Director of Finance and Administration; • Legal Services Division Director; • Court Information Systems Division Director; • Court Information Systems Division Deputy Director; • District Court Staff Attorney; and • Administrator of the Commission of Children, Youth, and Families.

If carried out, those terminations would disrupt the administration of justice across the state of Arkansas. The Chief Justice did not notify—let alone consult—the court before attempting to unilaterally fire these long-tenured court employees. After learning of the attempt to terminate these employees, a fellow justice asked the Chief Justice to meet with other members of the court to discuss her decisions. The Chief Justice refused. Four members of the court then renewed the request to discuss the attempted terminations, and the Chief Justice again declined. Yet when asked why these ten employees were being terminated, the Chief Justice stated that she had “millions of reasons.” Then, when asked about those employees’ families and the fact that they were scared and fearful, the Chief Justice responded by saying that it was “good” for those employees to be scared. The Chief Justice then ended that discussion.

Not once did the Chief Justice articulate a specific reason for firing any of these employees, either to the full court or to the employees themselves. Some of these employees have pending human-resource complaints against the Chief Justice for recent incidents. And the Chief Justice has attempted to terminate the recipient of these complaints, the Director of Finance and Administration. These terminations therefore appear to be retaliatory. And given the uncertainty these terminations have created and the potential disruption of the administration of justice, the court hereby adopts the following Administrative Order.

This situation is unnecessary and unfortunate. The court thanks the employees targeted for termination for their service and offers its sincere apologies to their families for this situation. And the court appreciates their continued service to the people of the Natural State.

Order

Absent express statutory authority to the contrary, the Director of the Administrative Office of the Courts holds sole responsibility to hire and terminate the staff of the Administrative Office of the Courts. Arkansas Code Annotated section 16-10-102(a)(2) also provides that the Director of the Administrative Office of the Courts is “subject to the approval of the Supreme Court and the Arkansas Judicial Council, Inc.” and “serves at the pleasure of the Supreme Court.” The Director therefore cannot be terminated without the express consent of at least four members of the Supreme Court.

As it relates to employees of the Administrative Office of the Courts, no employee of the Supreme Court of Arkansas or the Administrative Office of the Courts shall process any termination letter, restrict access to physical space, restrict access to information-technology services, cut off payroll, or otherwise restrict employment activity without the express approval of the Director of the Administrative Office of the Courts.

As it relates to the Director of the Administrative Office of the Courts, no employee of the Supreme Court of Arkansas or the Administrative Office of the Courts shall process any termination letter, restrict access to physical space, restrict access to information-technology services, cut off payroll, or otherwise restrict employment activity without the express written approval of at least four members of the Supreme Court of Arkansas.

The Clerk of the Supreme Court and Reporter of Decisions also serve at the pleasure of the entire Supreme Court of Arkansas. Ark. Const. amend. 80, § 2(F). The Clerk and Reporter cannot be terminated without the express written approval of four members of the Supreme Court of Arkansas. The Clerk and Reporter retain hiring and firing authority for members of their staff, subject to notice to the entire court. Absent an emergency, any terminated employee may be reinstated within three days if at least four members of the Supreme Court have given express written notice.

Each justice has hiring and firing authority for his or her immediate chambers staff, which includes two law clerks and a judicial administrative assistant. No other Supreme Court of Arkansas employee or Bar of Arkansas employee may be terminated without the express written approval of four members of the Supreme Court of Arkansas.

Any terminations that have occurred on or after January 1, 2025, in contravention of this order are hereby rescinded, effective immediately.

Enforcement

The failure to abide by any provision of this order may result in a citation for contempt.

The Chief Justice and Justice Hudson did not participate in the order.

Arkansas Advocate had background on the controversy

In August, Arkansas Business sent AOC a FOIA request for emails between Hudson and Lisa Ballard, the former head of AOC’s Office of Professional Conduct. Ballard and two other employees left OPC in short succession in May. Her personnel file, which was obtained by the Advocate through a FOIA request, did not include a letter of resignation or list a reason for termination.

Hudson sued to block the release of the emails, and the other five justices referred Hudson and her attorney to their respective disciplinary commissions for “flagrant breaches of confidentiality” by filing emails of other justices into evidence in the lawsuit. Baker dissented, saying the other five justices had “a fundamental misunderstanding” of the FOIA and had damaged the Supreme Court’s credibility. Hudson later made the emails public.

Arkansas Times was critical of the order

The justices who issued today’s opinion simply whipped up a new rule, effective immediately, that makes it impossible for the chief justice to unilaterally fire AOC staff. Their opinion gives the court as a whole the power to rescind any terminations by a simple majority vote. The new rule also threatens to hold in contempt any staff members who don’t comply.

Internecine squabbles at the Arkansas Justice Building are certainly not a new phenomenon; the court publicly aired a lot of its dirty laundry in recent months during a fight over Justice Hudson’s emails and the Freedom of Information Act. And, much like the Hudson FOIA fight, today’s opinion seems designed to embarrass Baker and not-so-subtly warn her that she cannot exercise power without the consent of a majority of the court.

It is difficult to look at this and not see traces of sour grapes and retaliation against Baker by other justices. After all, Baker defeated Justice Rhonda Wood for the chief justice seat, despite Wood being heavily favored in name recognition and money. Baker was also aligned with Hudson during the FOIA fight in September.

Barely three months ago, the court referred Hudson and her attorney for possible discipline for including internal court communications as exhibits in a lawsuit. Today, the court is quoting from internal conversations between Baker and other justices (though, curiously, without identifying which other justice(s) were involved). 

Regardless of how one feels about the possible termination of the listed court employees, the court’s handling of it is messy. After all, sharing confidential internal communications — which they already attacked a fellow justice for doing — to accuse the chief justice of doing something that technically didn’t break any court rules, is hypocritical, even for this bunch.

(Mike Frisch)

Recusal Not Overturned

The North Dakota Supreme Court declined to vacate a judge's decision to recuse himself in civil litigation.

McKenzie Electric Cooperative, Inc. (“McKenzie Electric”) petitions this Court for a supervisory writ directing the district court to vacate its order of recusal, deny the motion for recusal, and reassign the action back to Judge El-Dweek. Basin Electric Power Cooperative (“Basin Electric”), Upper Missouri G & T Electric Cooperative, Inc. (“Upper Missouri”), and Mountrail-Williams Electric Cooperative (“Mountrail-Williams”) (“collectively Respondents”) oppose the petition. We deny the petition, concluding this is not an appropriate case in which to exercise our supervisory jurisdiction.

The case

This case commenced in November 2019. In July 2020, Judge El-Dweek disclosed to the parties that he was a member of McKenzie Electric. The parties conducted discovery through 2023. At some time during 2023, McKenzie Electric disclosed that it was seeking between $479 million and $510 million in damages and it intended to distribute the award to its members. In July 2023, the court scheduled a 30-day jury trial to commence on January 6, 2025. Summary judgment motions were filed in December 2023. In May 2024, Respondents filed a motion for a change of venue, citing the potential jurors’ likely membership in McKenzie Electric and their resulting economic interest in the outcome of the case. At the hearing on the motion in August 2024, Judge El-Dweek again reminded the parties he was a member of McKenzie Electric, stating: “And if anybody wants to do anything with that information, they are certainly welcome to.” Following the hearing, Respondents filed a motion for recusal. After briefing and a hearing on the motion, Judge El-Dweek described the timing for the motion as “suspect” but recused himself, concluding: “The integrity of the justice system demands that [he] recuse[] himself from this case solely because of the mere appearance of impropriety.”

No supervisory writ

Our authority to issue a supervisory writ is discretionary. We exercise that discretion rarely and cautiously—and only to rectify errors and prevent injustice in extraordinary cases. Under the circumstances presented in this case, where the claimed injustice stems primarily from delay that largely cannot now be remedied and the reassignment presents no serious question of judicial bias, we decline to exercise our discretion to consider the supervisory writ.

Crothers, Justice, concurring.

I concur in the denial of McKenzie Electric’s motion for a supervisory writ. I nevertheless write separately to make clear my position that the decision to not issue a writ should not be read as my agreement with the Respondents’ arguments. Rather, I believe that the Respondents waived their objection to the judge sitting on the case, and that many of the arguments advanced by the parties to this proceeding do not correctly apply North Dakota law on recusal and disqualification. However, even applying the law as I see it, issuing a supervisory writ will not undo the strategic damage done by the Respondents’ untimely and unsupported motion.

Judge's interest

Here, the judge is a member of McKenzie Electric, which is seeking a large financial recovery. McKenzie Electric has represented that, if successful, it will distribute the recovery to cooperative members—including the judge. At oral argument the parties confirmed that the judge’s potential recovery is between $4,704 and $5,427. This potential payment to the judge is significant. Thus, like above in the discussion of economic interest, under these facts it would not be an abuse of discretion for the judge to conclude a reasonable person knowing all the facts reasonably could question the judge’s partiality. On this basis McKenzie Electric cannot show the judge’s decision to grant the motion was an abuse of discretion, or this is one of the rare cases requiring that we provide the extraordinary relief of a supervisory writ.

(Mike Frisch)

Judge Can't Extern

A recent opinion of the South Carolina Advisory Committee on Judicial Standards

RE: Propriety of a part-time ministerial recorder for a municipality accepting an externship with the solicitor’s office.

FACTS

A part-time municipal ministerial recorder also attends law school through a parttime/hybrid program. As a part-time ministerial recorder, the judge works Monday through Friday, 2 p.m. to 10 p.m., and issues arrest warrants and search warrants, issues summons and subpoenas, and presides over bond hearings. The law school has certain externship requirements and the judge has been offered the opportunity to gain work experience at the Seventh Circuit Solicitor’s
Office in a particular County. The municipality in which the judge serves in is partially within that County. The job at the Solicitor’s Office would entail the judge working one or two days a week from 9 a.m. to 1 p.m. (so it would not interfere with the judge’s hours at municipal court) and would involve shadowing a practicing solicitor, conducting legal research and other supervised work. The cases on which the judge would work would not be cases that stemmed from the municipality in which the judge serves. The judge inquires as to the propriety of: 1) accepting this job to fulfill the externship requirements for law school; an 2) accepting the job for compensation should that opportunity arise.

CONCLUSION

A part-time municipal ministerial recorder may not accept a job with the solicitor’s office.

OPINION

The Code of Judicial Conduct does not prohibit judges from other employment, provided it does not interfere with judicial duties or otherwise violate the Code. Canon 4D(3). In addition, as we noted in Opinion 9-1999, part-time judges are even permitted to practice law, subject to several limitations under the Code of Judicial Conduct. The Code also exempts part-time judges from complying with Canon 4(C)(2), limiting the acceptance of governmental positions. S.C.A.C.R.501, Application of the Code of Judicial Conduct C, Canon 4C(2).

However, in Opinion 7-2021, we considered the propriety of a part-time municipal court judge also being employed as an assistant solicitor in a circuit that includes the municipality in which the judge serves. We found that the judge could not be employed as an assistant solicitor for a circuit that included the county encompassing the municipal court on which the judge presided. Similarly, we have previously found that part-time judges should not accept other positions in the Solicitor’s Office. See, Opinions 11-2002 (magistrate, whether full or part-time, could not be employed as clerk of computer records for Solicitor’s office); Opinion 19-2006 (parttime magistrate could not work in clerical position in the Worthless Check Collection department of a solicitor’s office). In both of those opinions, we found that employment in a Solicitor’s Office could cast doubt on the judge’s ability to act impartially and could create the appearance of impropriety.

Thus, we find that the judge should not accept the position, whether as credit for a law school requirement or compensation, with the Solicitor’ office under these circumstances.

(Mike Frisch)

Animal Court

A Rotterdam town court justice has resigned and agreed to not hold future judicial office after being formally charged with misconduct by the New York Commission on Judicial Conduct.

Allegations are that he

Made various improper remarks despite having been counseled by supervising and administrative judges, for

 Referring to litigants appearing before him as “animals” during a meeting with town officials, and

Sarcastically saying it was “questionable” or “debatable” that a particular Assistant Public Defender was actually an attorney;

Conveyed the impression he was not being faithful to the law or considering cases on their individual merits, in that he:

Insisted on imposing a consecutive jail sentence for a defendant who had cases pending in neighboring counties because, “I don’t run things concurrent out of this Court because when you commit a crime in Rotterdam, you do the time for Rotterdam,”

Assumed without basis that a defendant charged with cell phone theft had a drug problem, and insisted on ordering a drug evaluation before granting an adjournment in contemplation of dismissal (ACD),

Denigrated a prosecutor’s recommendation of an ACD, $50 restitution and community service in a Petit Larceny case as “not even really worth writing the paperwork up,” and

Set bail without considering the required factors, which resulted in a defendant being held in county jail for six days until the judge’s bail determination was overturned by a higher court;

Said that a public defender who believed the judge imposed excessive jail sentences actually did not have “faith” in this client; and

Failed to mechanically record a proceeding as required.

(Mike Frisch)

Wiretap Charges Brought Against Maryland Judge

Eye on Annapolis reports on an indictment of a judge on allegations that he had wiretapped fellow judges

Maryland State Prosecutor Charlton T. Howard III announced today that an Anne Arundel County Grand Jury has indicted Judge Marc Knapp of the Anne Arundel County Orphans’ Court.  Knapp faces one count of illegal wiretapping and one count of misconduct in office.

The indictment alleges that Judge Knapp recorded judicial deliberations without obtaining the consent of other parties involved in the discussions. Under Maryland law, recording conversations without the consent of all participants is prohibited.

State Prosecutor Howard emphasized the importance of upholding judicial integrity, noting that all individuals are presumed innocent until proven guilty in court. As proceedings continue, further details about the case are expected to emerge. 

Details from Maryland Matters

An Anne Arundel County Orphans Court Judge finds himself on the wrong side of the law after being charged with recording his fellow judges without their consent.

An Anne Arundel County grand jury handed up an indictment Friday against Judge Marc Knapp for unlawful intercept and misconduct in office. The Office of the State Prosecutor announced the charges Friday.

Knapp is accused of one count of unlawful intercept. Prosecutors, in a court filing, said Knapp illegally recorded his colleagues on June 4, 2024, during deliberations in chambers. Neither of the other judges was aware they were being recorded. Maryland law requires the consent of all parties to be recorded.

Knapp was also charged with one count of misconduct in office related to the recording.

Knapp, an associate judge, is one of three orphans court judges in Anne Arundel County. The elected judges adjudicate estates disputes and, in some cases, appoint guardians for minors and their property.

Peter O’Neill, Knapp’s attorney, was not immediately available for comment. O’Neill represented Erica Griswold, the Anne Arundel County Register of Wills, who was convicted of theft involving an estate tax payment made to her office, which is part of the Orphans Court system. Griswold, the first Black woman to hold the position, lost her job months after being sworn in.

The charges are the latest in a series of troubles for Knapp that involve his colleagues and position. He and Vickie Gipson, the court’s chief judge, have been involved in a series of legal troubles that included criminal charges, allegations of harassment and evidence tampering, and threats.

Knapp was placed on paid leave and faced charges before the state’s Commission on Judicial Disabilities, according to The Baltimore Sun.

And while the earlier criminal charges against Knapp were dismissed, a judge issued a temporary peace order barring Knapp from interacting with his colleagues other than in a professional capacity. That order was later dismissed by another judge who found there was no statutory basis for the peace order, according to online court records.

The Office of the State Prosecutor dropped charges of harassment and violating the peace order earlier this year, according to published reports.

(Mike Frisch)

Everything Within Their Power

A challenge to the election of a Court of Appeals judge was rejected by the Georgia Supreme Court

In May 2024, Appellant Tabitha Ponder ran against and lost to Jeffrey Davis for a seat on the Georgia Court of Appeals. Three weeks after her loss, Ponder, along with an elector, Randolph Frails, filed the underlying election contest petition, asserting that Davis was not qualified to run as a candidate in the election because he is not a resident of Georgia. Appellants Ponder and Frails appeal from the superior court’s dismissal of that election contest petition. Because Appellants have failed to do “everything within their power to have their claims decided before the election occurred,” we “dismiss the appeal without reaching the merits (or lack thereof).” Catoosa County Republican Party v. Henry, 319 Ga. 794, 794-95 (906 SE2d 750) (2024).

The Secretary of State had found prior to the election that Davis was a Georgia resident

On May 21, 2024, the election was held, with Davis receiving 57.1% of the votes and Ponder receiving 42.9%. According to the superior court, “[a]s requested by Petitioner, the Court held a hearing on Friday, June 7,” after which it entered an order dismissing Frails’s petition as moot because the election had already occurred and the results were certified by the Secretary of State. Frails did not appeal that order.

(Mike Frisch)

Ex Parte Contact Draws Admonishment

The New York Commission on Judicial Conduct has admonished a Supreme Court justice

Respondent, Lewis J. Lubell, a Justice of the Supreme Court, Westchester County, was served with a Formal Written Complaint (“Complaint”) dated August 27, 2024 containing one charge. Charge I of the Complaint alleged on August 19, 2022, after having spoken with his friend Mitchell P. Lieberman about a pending matrimonial case that Mr. Lieberman, an attorney, had before Supreme Court Justice Thomas Quinones (Westchester County), respondent initiated an ex parte conversation about that case with Judge Quinones and gave him advice on an issue Mr. Lieberman had raised. The Complaint further alleged that on September 16, 2022, respondent had another ex parte conversation with Judge Quinones about Mr. Lieberman’s case, inter alia asking if Judge Quinones had considered firing his court attorney over the matter raised by Mr. Lieberman.

The stipulated facts note that Respondent was social friends with both the attorney and the fellow justice

On August 17, 2022, Edit Shkreli, [now an elected civil court judge] who at the time was Judge Quinones’ court attorney, conducted a case conference in Allison Cooper Cohen v Jacques Cohen (“Cohen”), a contested matrimonial matter. Mr. Lieberman’s law partner, John O. Farley, appeared with his client, Ms. Cooper Cohen; attorney Stuart P. Slotnick appeared with his client, Mr. Cohen; and attorney Tiffany Gallo appeared on behalf of the children.

On August 19, 2022, Mr. Lieberman spoke to respondent about the August 17 conference in Cohen. Mr. Lieberman complained that Mr. Farley had had a bad experience with Ms. Shkreli, and that she had made an unflattering comment about their firm in the presence of the parties and their attorneys. Mr. Lieberman asked respondent what he should do. Respondent replied that Mr. Lieberman needed to speak to Judge Quinones.

On August 19, 2022, respondent asked Judge Quinones to his chambers and said he had become aware of a problem involving Ms. Shkreli during the August 17 conference conducted by Ms. Shkreli in the Cohen case. Respondent suggested that Judge Quinones insulate Ms. Shkreli from handling any cases involving Mr. Lieberman or his firm, and that he should speak to Mr. Lieberman to work things out.

On September 16, 2022, respondent had another conversation with Judge Quinones in respondent’s chambers. Respondent asked Judge Quinones if he had considered replacing Ms. Shkreli as his court attorney. Judge Quinones replied, in words or substance, that he had no intention of firing her and that she had not done anything to warrant being fired.

Neither respondent nor Judge Quinones disclosed respondent’s conversations with Mr. Lieberman, or respondent’s conversation with Judge Quinones, to the parties, the defense attorney or the attorney for the children.

Respondent has no prior discipline in his twenty year service as a judge and was "contrite and cooperative" in this investigation. (Mike Frisch)

The Education Of A Judge

The North Dakota Supreme Court has admonished a municipal court judge

This is a disciplinary proceeding against Paul Hagen, municipal judge of the McClusky Municipal Court. We conclude Hagen violated the North Dakota Code of Judicial Conduct. We impose an admonition with conditions.

On July 16, 2024, Hagen and and disciplinary counsel entered into an agreement for discipline by consent under R. Jud. Conduct Comm. 14, which includes Judge Hagen’s affidavit acknowledging his misconduct and consenting to an admonition with conditions. On July 26, 2024, the Hearing Panel referred the matter to this Court under R. Jud. Cond. Comm. 14. Hagen admitted that he failed to obtain 18 hours of continuing education credits within the reporting period from July 1, 2020 through June 30, 2023. Hagen admitted this failure violated N.D. Code Jud. Conduct 1.1, N.D. Sup. Admin. R. 36 and N.D.C.C. § 4018-22; and violated N.D. Code Jud. Conduct Rules 2.1 by not prioritizing the completion of his judicial education over his personal and extrajudicial activities.

Paul Hagen agreed to completed the balance of 5.75 continuing education credits for the previous reporting period prior to the date of the hearing scheduled in this matter on July 17, 2024. The Court has not been advised Paul Hagen did not obtain the credits, and we note the matter was referred to us by the Hearing Panel after the date Paul Hagen’s compliance with the agreement was due.

(Mike Frisch)

F-Bombs And Out Like Flynn

The Florida Supreme Court has issued opinions in two judicial misconduct matters.

A 60-day suspension and reprimand was imposed for intemperate conduct

On February 9, Samuel Perez appeared before Judge Culver at a hearing to determine whether Perez had violated an injunction requiring him to complete a “batterer’s intervention program.” The Commission found that Perez “was polite and respectful at the hearing, and apologetic for failing to complete the [program] earlier.” Judge Culver “nevertheless found him in direct criminal contempt based on failure to complete the [program], sentenced him to the maximum 179 days in jail, and had Mr. Perez summarily taken into custody.” Judge Culver cut off Perez when the latter asked to address the court. A woman seated in the gallery stood up and began to address the court, but within a few seconds Judge Culver told her: “Ma’am, sit down or you’re going to go into custody as well.” The Fifth District Court of Appeal later concluded that Judge Culver’s handling of the contempt proceeding violated the governing rules of procedure, in part by failing to offer Perez a meaningful opportunity to present mitigation testimony. Perez v. State, 334 So. 3d 742, 742 (Fla. 5th DCA 2022). After Perez had already spent more than a month in jail, the district court granted an emergency habeas petition for his release.

The day after the hearing in the Perez case, Kevin Newton was scheduled to appear before Judge Culver. Newton entered the courtroom while a different hearing was underway, and he could not find a seat. According to the Commission, “Judge Culver noticed him, and yelled in a loud, aggressive voice, ‘Sir, I’m doing something here. Could you shut up and sit down.’ ” Newton responded that he was trying to find a seat. To which Judge Culver replied: “That’s not shutting up. You want to be held in contempt and go to jail? I asked you a f*****g question, a*****e.” Newton answered, “No, Sir,” and Judge Culver said, “Then shut up.” The Commission tells us that, at his disciplinary hearing, “Judge Culver admitted shocking himself by his use of profanity, and that members of the public would rightly be appalled.”

The other matter involved campaign misconduct

During a successful 2022 race for Polk County Judge, John B. Flynn and his campaign repeatedly signaled support for law enforcement agencies in a way that could cast doubt on his impartiality. The Judicial Qualifications Commission and Judge Flynn have filed in this Court an Amended Stipulation and Amended Findings and Recommendation of Discipline agreeing that Flynn’s conduct violated Canons 7A(3)(a), 7A(3)(b), 7A(3)(c), and 7A(3)(e)(i) of the Code of Judicial Conduct. The parties further agree that Judge Flynn should be disciplined by the imposition of a 25- day suspension without pay and a public reprimand. We accept the stipulation and findings and will impose the recommended discipline.

Promises, promises

According to the parties’ stipulation, Judge Flynn made or approved the following statements during his 2022 judicial campaign: “Support law enforcement”; “Support our law enforcement agencies”; “Criminals won’t be happy to see me on the bench[.] I am tough[;] if someone is found guilty the punishment should sting enough for the person to learn criminal behavior won’t be tolerated”; and “I will sentence based on history because that is the best indication of future behavior and if they have a history Grady’s Hotel (aka the jail) is open 24*7 365 days a year.” Because of these statements, when Judge Flynn took office, his chief judge had to make administrative adjustments to ensure that Flynn was not assigned to a criminal docket. Consistent with our precedents, we treat these stipulated facts as supported by clear and convincing evidence. In re Bailey, 267 So. 3d 992, 995 (Fla. 2019).

We agree with the Commission and Judge Flynn that these statements, viewed in their totality, constitute “very serious” misconduct.

Sanction

In fashioning its recommended discipline, the Commission noted Judge Flynn’s immediate acceptance of responsibility, his remorse, and his cooperation with the panel investigating his case. The Commission also considered Flynn’s newness to the bench and his clean disciplinary record as a lawyer and judge. We agree with the Commission that these are mitigating circumstances.

For all these reasons, we approve the Amended Stipulation and Amended Findings and Recommendation of Discipline in this matter. Judge Flynn is hereby suspended from his judicial duties  for 25 days, without pay, effective on a date within 30 days of the issuance of this opinion and as determined by the Chief Judge of the Tenth Judicial Circuit. We further order Judge Flynn to appear before this Court for the administration of a public reprimand at a time to be established by the Clerk of this Court.

(Mike Frisch)

The Aggregate Of Experiences

The New Jersey Appellate Division has held that a compensation judge is not per se disqualified because of actions undertaken as a legislator

These compensation cases, calendared back-to-back and consolidated for purposes of this opinion, present a novel issue: whether a judge of compensation was required to recuse herself from presiding over a matter involving the application of a statute for which the judge was a sponsor in her prior capacity as a member of the Legislature.

Holding

A compensation judge who formerly sponsored a bill enacted into law is not per se disqualified from presiding over cases implicating or interpreting that law. "A judge ordinarily is not disqualifiable because of his [or her] own life experiences." Johnson v. Salem Corp., 189 N.J. Super. 50, 60 (App. Div. 1983). "[E]ach of us is a product of the aggregate of our experiences, and our understanding is enhanced by the totality of our experiences." Id. at 60-61. Thus, a judge's personal knowledge of or experience with certain legislative history does not necessarily render the judge biased or unable to make a fair judgment in the matter.

Rather, the judge must determine whether a reasonable person would doubt the judge's impartiality, given the judge's prior involvement in the legislative proceedings and the issues and facts presented in the case before the judge. We are satisfied that Judge Downey did not abuse her discretion in deciding a recusal was unwarranted in this case. Her knowledge of the law and lawmaking was not extrajudicial knowledge but rather judicial knowledge that many judges take with them to the bench. In addition, her comments during conferences were based on her application of the statute, as it was enacted, to the facts presented to her at that time.

Respondent also argues that the judge, as a former sponsor of the bill, could be called as a witness and therefore should not have decided the matter. We are unpersuaded by this speculative contention. While a court may look to legislative history, including the sponsors' statements, to shed light on an ambiguous statute, individual legislators are typically not subject to examination as to how they personally interpreted the statute. That is because we are not interested in the statement of one legislator as to what he or she believed was the correct interpretation of a statute.

(Mike Frisch)

Appearance Of Impropriety

The South Carolina Advisory Committee on Standards of Judicial Conduct declines to bless an arrangement proposed as a consequence of several retirements

FACTS

A part-time magistrate judge works for the County Tuesday through Thursday and is compensated for 22 hours. The judge also works as a part-time municipal judge every other Monday, Friday, Saturday, and Sunday and is compensated for 4 hours. Due to three judges retiring, the County has agreed to compensate the judge for 10 hours of service in magistrate’s court every other weekend. The County has agreed that that the county service can be on the same weekend that the judge serves as the municipal judge for the City. However, the Chief Magistrate has questioned this simultaneous weekend service.

CONCLUSION

A part-time magistrate judge may not serve as the part-time municipal judge simultaneously.

OPINION

Canon 1 requires judges to observe the highest standards of conduct. Canon 2 provides that a judge must avoid not only impropriety, but also the appearance of impropriety in all of the judge's activities.

Here, judge simultaneously serves in the capacity as a magistrate judge for the county and a municipal judge for the city, and getting paid by each entity, creates the appearance that the judge is getting paid twice for the hours worked. This creates an appearance of impropriety. If the judge was to work a set schedule at each court, such as Saturday at municipal court and Sunday at magistrate court,  there would be no such appearance of impropriety. Thus, the judge cannot serve as judge for the same courts at the same time. This finding applies even though this dual service would be temporary until new judges are appointed to replace the retiring judges.

(Mike Frisch)

"This Court Does Not Deal In Speculation"

The Tennessee Court of Appeals affirmed the denial of a motion to recuse a trial judge

Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C. (“Baker Donelson”), Plaintiff/Appellant’s counsel of record in this case, is also counsel of record in a case pending in the Chancery Court for Sevier County, Kars, LLC et al. v. Ronald W. Ogle, et al., No. 25-5-106 (the “Kars Lawsuit”). In the Kars Lawsuit, Attorney Nicholas W. Diegel, a Baker Donelson shareholder, represents all six defendants, including Mr. Ronald W. Ogle (“Mr. Ogle”). Mr. Diegel is also one of the attorneys of record in this case.

On September 12, 2024, Judge Adrienne Waters Ogle was sworn in as a Circuit Court Judge for the 4th Judicial District. On the same day, the instant case (Dover v. Dover) was assigned to her docket. Prior to her appointment, Judge Waters Ogle practiced law with the firm of Green, Waters Ogle, and McCarter (the “Green Firm”). Attorney Travis D. McCarter, a member of the Green Firm, represents the plaintiffs in the Kars Lawsuit. The Kars Lawsuit arises from Mr. Ogle’s purchase of real property in Sevier County, Tennessee from a co-defendant and includes claims for breach of a lease purchase option, tortious interference, and other common-law tort claims. The Kars Lawsuit plaintiffs seek compensatory and punitive damages in excess of $150 million. Because all parties to the Kars Lawsuit are well-known members of the community, the Chancellor for Sevier County recused himself at the case’s inception, as did all remaining judges in the Circuit Court. The Kars Lawsuit recently was assigned to the Honorable John McAfee in the Circuit Court for the 8th Judicial District.

The allegations that underpin the recusal motion are contained in an affidavit of Mr. Ogle's personal assistant.

On September 19, 2024, Appellant filed a motion asking Judge Waters Ogle to recuse herself in the Dover case. In addition to Ms. Emory’s declaration, Appellant also filed the declaration of attorney Diegel in support of the motion for recusal. In relevant part, Mr. Diegel stated that,

as lead Baker Donelson counsel for the Kars Lawsuit Defendants, I will be tasked with obtaining discoverable information from Judge Waters Ogle and almost certainly cross-examining her as an adverse witness [in the Kars Lawsuit]. Depending on the outcome of the discovery, I may also be ethically required to report Judge Waters Ogle to the Board of Professional Responsibility based on the August 12, 2024 incident....

The affidavit avers that Judge Waters Ogle trespassed into Ms.Emery's office.

The judge in denying recusal stated that she did not know Mr. Diegal and had no bias against him or his firm. She further denied any knowledge of or connection to the Kars litigation.

Appellant filed the instant petition for recusal appeal in this Court. In addition to the allegations of bias arising from the alleged trespass into Ms. Emory’s offices, Appellant also cites several instances from the September 27, 2024 hearing as proof of a pattern of bias on the part of Judge Waters Ogle.

The court found the allegations of bias in the case did not warrant recusal.

As to the alleged trespass

Here, Appellant’s allegations of bias are comprised largely of speculation and insinuation. Appellant would have us infer that Judge Waters Ogle’s decision to enter Ms. Emory’s office without express permission was in furtherance of her plan to aid her former firm in gaining access to private records important to its representation of the Kars Lawsuit defendants. While Ms. Emory opines that, “Mr. McCarter and Ms. Waters Ogle had the opportunity, outside of camera view, to access and view the confidential documents in my Office,” an opportunity to do something does not mean it was done. Like the Sevierville Police Department, we conclude that the video provided by Appellant was insufficient to show that Judge Waters Ogle tampered with any records held in Ms. Emory’s offices. 

And

Furthermore, at this point, Appellant’s contention that Judge Waters Ogle will be a witness in the Kars Lawsuit is speculative. The fact that Judge Waters Ogle filed a motion to quash in that case indicates that her participation as a witness or otherwise is not settled. This Court does not deal in speculation. To conclude that recusal is necessary, the moving party must put forth actual evidence showing how it was prejudiced by some specific act(s) of the trial judge. Such evidence does not exist in this case. Moreover, Mr. Diegel’s averment that “I may also be ethically required to report Judge Waters Ogle to the Board of Professional Responsibility based on the August 12, 2024 incident . . .,” is mere speculation at this point.

The Knoxville Daily Sun had a story that links to the Kars complaint

At 1:30 p.m. today, Kasowitz Benson Torres filed a case on behalf of KARS, RH1 and Rocky Top against Ronald Ogle, Betty Ogle, Lynn Webb, Daniel Webb, Whaley Properties and LD&S, arising from their predatory and unfair actions to obstruct the development of a commercial business property at 750 Dolly Parton Parkway in Sevierville.

Although they aren't a match for the Hatfield & McCoys, the upcoming show should be spectacular.

The Complaint provides additional context, including antisemitic behavior as described in point #9 and beyond.

The colorful history of the Ogles of Gatlinberg is recounted in this story from Smokey Mountain Living Magazine

Gatlinburg, the popular gateway town of the Great Smoky Mountains National Park, was named for a notorious figure named Radford Gatlin. However, it is the Ogles, descendants of the first settlers, who have embodied Gatlinburg history and contributed to its phenomenal tourist development. Today there are over 10,000 who rightfully claim kin to the Ogles.

During a hunting trek around 1803, William “Billy” Ogle discovered an isolated place near the foot of Mount LeConte that would come to be known as White Oak Flats. He was so impressed that he laid claim to the property, hewed logs for a cabin, then returned to his home in South Carolina and informed his family that as soon as they could grow and harvest a crop, they were all moving to what he described as the land of paradise. Unfortunately, Ogle contracted malaria and died while preparing for the move. 

His undaunted widow, Martha Jane, brought her five sons and two daughters, and her brother and his family to White Oaks Flats in 1807. They found the cached logs where Billy had left them, built a cabin, and settled the land around it. Martha Jane is unquestionably the maternal ancestor of most of the sons and daughters of the pioneer families who built the tourist mecca, Gatlinburg, after the Great Smoky Mountains National Park was established. 

(Mike Frisch)

Another Resignation

A resignation of a non-attorney town court justice was accepted by the New York Commission on Judicial Conduct

In August 2024, the Commission apprised Judge Carson that it was investigating four complaints alleging, inter alia, that he failed to transfer to another court various traffic tickets issued to his son, engaged in ex parte communications, mishandled violations of local dog-control ordinances and failed to report and remit court funds in a timely manner as required by law for several months in 2023. In addition, it was alleged that he engaged in unauthorized political activity by circulating nominating petitions for his relative's candidacy for town council, was belligerent at public town meetings and in interactions with other town officials, and appeared to be suffering from health issues that prevented the proper performance of his judicial duties.

Judge Carson tendered his resignation from judicial office on August 22, 2024, by letter dated August 14, 2024, a copy of which is annexed as Exhibit 1. Judge Carson affirms that he vacated judicial office as of August 14, 2024.

(Mike Frisch)

Unemployed Now

The resignation of a town court justice was accepted the the New York Commission on Judicial Conduct based on a stipulation of misconduct summarized in a press  release

Kevin E. Copeland, a Justice of the New Hartford Town Court, Oneida County - who was charged by the Commission on Judicial Conduct with receiving unemployment benefits to which he was not entitled – has resigned from office and agreed to never return.

In July 2024, Judge Copeland was served with a Formal Written Complaint, alleging that the New York State Department of Labor (DOL) found that the judge made a “factually false statement” and “concealed...pertinent” information regarding his compensation as a judge which resulted in his receiving nearly $14,000 in unemployment insurance benefits to which he was not entitled. He repaid the money after the DOL findings.

Footnote

Between March 2020 and March 2021, on at least 17 weekly certifications to the DOL, the judge certified that he worked zero days, when he had in fact worked at least one day, either performing his regular judicial duties or presiding over off-hours arraignments through the Centralized Arraignment Part in Oneida County. The judge asserted that the overpaid benefits were based on a misunderstanding during the pandemic.

(Mike Frisch)