Thursday, May 19, 2022

24 Hours A Day

The Florida Supreme Court imposed a 60-day suspension of a judge, finding misconduct in five of seven charged violations

The charges against Judge Hobbs stemmed in part from events relating to her adult son. In 2018, Judge Hobbs’s son was charged with misdemeanor DUI in Leon County, which is located within the Second Judicial Circuit. Judge Hobbs retained an attorney to represent her son. Shortly thereafter, Judge Hobbs assumed another judge’s docket, and on that docket were two cases where her son’s attorney was the attorney of record. When the cases and her son’s attorney appeared before her, Judge Hobbs did not recuse herself nor did she disclose her connection with the attorney. In one case, she granted an agreed motion for continuance. In the other, the parties announced they had agreed to enter a deferred prosecution agreement, and she set a new court date to ensure the agreement had been signed.

On the evening of July 29, 2019, Judge Hobbs’s son was arrested after allegedly shooting a person in his home. After learning of the arrest, Judge Hobbs went to the police station where her son was being held. Upon arrival, she asked to see her son but was told that only her son’s lawyer could meet with him. Judge Hobbs responded to this by saying that she was her son’s lawyer and was then permitted to enter the interrogation room where her son was being held. Judge Hobbs and her son had a nineteen-minute conversation which was unrecorded due to its privileged nature. Judge Hobbs also stayed with her son while he was interviewed by police, and at several points interjected to ask clarifying questions or to advise her son. At the end of the interview, Judge Hobbs asked the officers to release her son into her custody and expressed concerns about his safety because she had sentenced inmates in the same jail where he otherwise would be detained. The officers stated that it would be impossible to release her son into her custody due to the nature of the charges against him, but that they were aware of the potential safety issues.

After leaving the police station, Judge Hobbs contacted the attorney who represented her son in his DUI matter, and he agreed to represent him again. Although Judge Hobbs’s representation of her son ended at that point, Judge Hobbs’s legal assistant attended, and sat at counsel table during, his first appearance.

The judge when confronted took a leave of absence and did not counsel her judicial assistant

After the Chief Judge of the Second Judicial Circuit learned that Judge Hobbs’s son had been arrested, he contacted Judge Hobbs to arrange a meeting. During this meeting, Judge Hobbs explained that she had acted as her son’s attorney on the night of his arrest, and the Chief Judge advised her to report herself to the JQC, which she did on the same day. The Chief Judge also explained to Judge Hobbs that he had viewed the video recording of her son’s first appearance and directed her to counsel her judicial assistant regarding the appearance of impropriety created by her presence at counsel table. He also suggested that Judge Hobbs take some time off, and she agreed to do so.

The Chief Judge tried further counseling on her return

During the counseling session between the Chief Judge and the judicial assistant, the judicial assistant made a series of remarks, including that the Chief Judge was only “pretend[ing] to be sensitive to Judge Hobbs,” but then later “kick[ing] [her] in the butt.” The Chief Judge told Judge Hobbs that he believed her judicial assistant’s conduct during the meeting was grounds for termination. Judge Hobbs declined to terminate her judicial assistant but did counsel her on her conduct during the meeting.

Notwithstanding the admonition

On October 3, Judge Hobbs’s son, who was out on bail, came to Judge Hobbs’s office looking for his grandfather’s health insurance papers. Judge Hobbs’s son stated that he believed the papers were in Judge Hobbs’s office, which was in a secure part of the building. The judicial assistant then gave her all-access security badge to Judge Hobbs’s son, who used the private elevator to access the restricted area, where he encountered an “unnerved” clerk who reported the incident.

The court

Context is crucial for these charges. The evidence was both clear and convincing that Judge Hobbs’s judicial assistant used her position of trust to preferentially promote the individual interests of the judge’s family and did not appear to understand that her duty and our ethical rules required that she neither attempt to influence the outcome of the criminal charges pending against the judge’s son nor grant a privilege or courtesy to him that would not be equally extended to any other criminal defendant. Judge Hobbs knew of the serious ethical breach by her judicial assistant and took no steps to counsel her, even after being directed by her chief judge to do so.

The court sustained a number of charges but

In urging us to impose a harsher sanction than the Hearing Panel’s recommended discipline, the JQC suggests that Judge Hobbs’s misconduct demonstrates unfitness to hold judicial office that warrants removal. We disagree.

Also but

However, we do agree with the JQC that the recommended discipline is insufficient. Although we are not unsympathetic to Judge Hobbs’s family situation, her violations of the Code of Judicial Conduct demonstrate a failure of judgment and a lack of appropriate boundaries between her judicial office and her personal life that cannot be tolerated in members of our judiciary. See In re Frank, 753 So. 2d 1228, 1241 (Fla. 2000) (“[A] ‘judge is a judge 7 days a week, 24 hours a day.’ ” (quoting JQC’s findings)).

The court imposed a $30,000 fine in addition to the proposed suspension. (Mike Frisch)

May 19, 2022 in Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, May 17, 2022

The Barbershop

The New Jersey Supreme Court imposed reciprocal discipline of a judge suspended for a year and a day in Pennsylvania.

From the report of the Disciplinary Review Board

The facts giving rise to the judicial and disciplinary actions against respondent are as follows. Respondent’s son, Ian Rexach, owned a barbershop in Philadelphia. On or about March 27, 2012, the Philadelphia City Solicitor’s Office filed a complaint in Philadelphia Municipal Court against Rexach for his failure to file a required 2008 business privilege tax return. Rexach failed to appear for the hearing on the complaint and, on May 15, 2012, the municipal court entered a default judgment against him.

On June 12, 2012, former Judge Dawn A. Segal, of the Philadelphia Municipal Court, denied Rexach’s pro se petition to open judgment. Thereafter, on June 26, 2012, respondent initiated a telephone call to former Philadelphia Municipal Court Judge Joseph C. Waters, Jr. Unbeknownst to respondent, Waters’ telephone conversations were being lawfully intercepted by the Federal Bureau of Investigation (the FBI).

The conversations are detailed in the report

Respondent admittedly engaged in inappropriate communication with Waters concerning her son’s case; improperly contacted Waters on June 29, 2012 to request that he contact Segal to ensure that Segal heard her son’s petition; failed to report the communications she had with Waters to the Judicial Conduct Board or any other authority; and made false statements of material fact in her written reply to the inquiry from the Judicial Conduct Board.

Sanction

On balance, a one-year suspension is required to protect the public and preserve confidence in the New Jersey bar. The suspension will be deferred and imposed if and when respondent is reinstated to the practice of law in New Jersey. There is no basis to grant respondent’s request that the suspension be imposed retroactively. We further determine to prohibit respondent from seeking pro hac vice admission before any New Jersey court or tribunal until further Order of the Court.

Chair Gallipoli voted to recommend to the Court respondent’s disbarment.

(Mike Frisch)

May 17, 2022 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Sunday, May 15, 2022

Judge Created Mess Draws Admonishment

An admonishment has been imposed by the Texas Commission on Judicial Discipline for a judge's misconduct in a divorce trial 

Throughout the trial, in open court, Judge Wells expressed irritation at both sides’ lawyers, including slamming a book on the bench, erupting in anger, using a harsh and sarcastic tone of voice, abruptly announcing recesses, and walking off the bench in frustration and anger.

On April 17, 2019, at or near the end of proceedings, Judge Wells ordered Attorney Teresa Waldrop (“Waldrop”) to his chambers for “a discussion” while the parties and other counsel remained in the courtroom.

On entering his chambers, Judge Wells cursed and then continued to use profanity to express his anger to Waldrop about the presentation of the case.

As the in-chambers discussion with Waldrop progressed, Judge Wells confessed that he had lost his temper and created an irreparable mess of the trial, conceding he was known to “have a bad temper” and stating, “the reality has – has come to me that I may not be suitable for this.”

Waldrop was frightened and intimidated by Judge Wells’ conduct in chambers and repeatedly asked to leave or have witnesses present. The in-chambers meeting nevertheless continued for more than an hour.

During the in-chambers meeting, Judge Wells expressed being “horrified by this”; wondered if he should “fling himself out the window”; and said he would “crawl under [his] desk.” During that time, Judge Wells also called another lawyer by telephone regarding the situation he had created.

At one point Judge Wells expressed that it would have been easier if Waldrop had come into his chambers and “fussed at him,” continuing, “Then we could have rolled around on the floor and strangled each other…”

Judge Wells later invited the parties and other counsel into his chambers, expressed his apologies for the situation and suggested some procedures to complete the trial.

Judge Wells recused from the case the day following the in-chambers events.

The commission ordered two hours of education as well. (Mike Frisch)

May 15, 2022 in Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, April 28, 2022

Tag Team

Dan Trevas has a summary of an Ohio Supreme Court decision

A Greene County Probate Court judge received a six-month stayed suspension today for berating a man who publicly questioned whether the judge should hear cases in which the judge’s daughter represents parties.

The Supreme Court of Ohio voted 5–2 to suspend Judge Thomas O’Diam of Xenia. The suspension was stayed with the conditions that he commit no further misconduct and complete six hours of judicial education focused on judicial demeanor, civility, and professionalism.

The sanctions imposed on Judge O’Diam related to a series of events in mid-2019 in which the judge violated the judicial-conduct rule requiring judges to be patient, dignified, and courteous to participants in cases and to require similar conduct of lawyers and others under the judge’s direction and control.

In a per curiam opinion, the Supreme Court adopted the Board of Professional Conduct’s conclusion that in two instances Judge O’Diam violated the rule and also allowed his daughter Brittany, an attorney appearing in his court, to violate the rule while questioning a beneficiary in an estate case she was handling.

Justices Sharon L. Kennedy, Patrick F. Fischer, R. Patrick DeWine, Michael P. Donnelly, and Melody Stewart joined the opinion.

Initially, the Office of Disciplinary Counsel recommended a public reprimand. A three-member board hearing panel then recommended a stayed suspension. However, the full Board of Professional conduct ultimately suggested Judge O’Diam be suspended for six months and be immediately suspended from his judicial office without pay.

Chief Justice Maureen O’Connor and Justice Jennifer Brunner concurred in part with the Court’s opinion but stated they would impose the board’s recommended full suspension without pay.

Judge’s Daughter Submits Estate Case
From 1985 to 2013, Judge O’Diam practiced estate planning and was the majority shareholder in a local Greene County law firm. His daughter, Brittany O’Diam, joined the firm in 2010. Following Judge O’Diam’s appointment to the bench in 2013, the firm reorganized and entered into a payment plan to purchase the judge’s ownership of the firm. The firm made regular payments to the judge until March 2021.

In 2018, Carolee Buccalo died, and her granddaughter was named executor of the estate. The granddaughter hired Brittany to assist with the estate administration. In May 2018, Brittany filed the application to probate the will in her father’s court.

Brittany filed seven waivers of disqualification signed by the beneficiaries of the estate, including three signed by Carolee’s son, Grant David Buccalo. The waivers explained that Brittany was the judge’s daughter, that she was a shareholder in the law firm, and the law firm was making payments to the judge. The waivers stated these circumstances could disqualify Judge O’Diam from hearing the case, but indicated the beneficiaries trusted Judge O’Diam to act impartially and fairly.

Public Comments Anger Judge
A year later, as the estate administration remained pending, Buccalo attended a Greene County Board of Commissioners’ meeting and requested time to address the commissioners regarding Judge O’Diam. Buccalo did not tell the commissioners about his mother’s estate or that he had signed any waivers.

Buccalo stated that he believed Judge O’Diam should recuse himself in cases in which O’Diam family members represent parties, and said, “Justice depends on the appearance as well as the reality of fairness in all things.” He added that people leaving the courtroom need to feel as if they got a “fair shake” and that the system “wasn’t rigged.”

He spoke for about two-and-a-half minutes on the matter and noted that he planned to file a grievance with the disciplinary counsel. About two weeks after the commissioners’ meeting, Buccalo submitted a grievance, which the disciplinary counsel’s office dismissed without investigation based on the waivers that Buccalo had signed.

Judge O’Diam heard about the comments and obtained a video recording of the commissioners’ meeting. He spoke to his daughter about the matter, then scheduled a status conference for the estate case. He ordered the executor and local beneficiaries to appear in person for the conference and warned that failure to attend would be considered contempt of court.

Judge, Daughter Grill Beneficiary
The judge did not inform Buccalo about the purpose of the status conference or tell him he would be called to testify under oath.

At the June 2019 conference, Judge O’Diam called Buccalo to the witness stand and played the video of his appearance at the commissioners’ meeting. He then cross-examined Buccalo for nearly an hour on issues related to the waivers Buccalo signed and his comments to the commissioners.

“I have been a probate judge for six years now. And never in my time on the bench have I ever been as personally offended as I am with you right now,” Judge O’Diam told Buccalo. “[Y]ou went to a public forum that has nothing to do with this court and you disparaged and slandered me personally on a public record.”

Judge O’Diam told Buccalo that he and the commissioners had a “run-in” before in which they “almost went to blows” over the commissioners’ attempt to interfere with the probate court’s administration. He stated he would address the commissioners.

After questioning Buccalo for an hour and denying his request for water, Judge O’Diam allowed his daughter to question Buccalo and make statements without restriction for 15 minutes. Brittany  stated that Buccalo also impugned her character at a public meeting and that his actions “cost this estate an extensive amount of money, an extensive amount of heartache, and an extensive amount of stress that was all completely unnecessary.”

At the conclusion of the conference, Judge O’Diam recused himself from the case and requested a visiting judge be appointed to consider the matter. A week later, Judge O’Diam and his daughter appeared before the county commissioners, and the Judge O’Diam stated Buccalo had made unfounded and false accusations about him and his daughter.

Judge’s Conduct Assessed
In March 2021, disciplinary counsel filed a complaint with the professional-conduct board relating to Judge O’Diam’s treatment of Buccalo.

At the disciplinary hearing, Judge O’Diam testified that he intended to use the status conference to determine why Buccalo had an issue with the disqualification waivers and whether there was any way to resolve his concerns. Judge O’Diam also described Buccalo’s testimony about the hearing as “a lot of overdramatization” of what occurred.

The panel heard a recording of the probate court hearing and found that Judge O’Diam understated his demeanor and attitude. The panel noted that during his lengthy questioning of Buccalo, Judge O’Diam never addressed the topics he stated were the reasons for the conference. The panel suggested that the evidence indicated the judge planned to recuse himself even before the hearing took place and that his questioning of Buccalo “was entirely gratuitous.”

The board adopted the panel’s findings that Judge O’Diam violated the rule regarding the treatment of parties.

The Court’s opinion stated Judge O’Diam had the authority to convene a status conference to ask about the waivers, but the evidence showed that was not the true focus of the inquiry.

“Instead O’Diam berated Buccalo for nearly an hour for what he perceived to be Buccalo’s personal attack against him at an unfriendly public forum, allowed his daughter to continue his line of intemperate interrogation, and then appeared at the commissioners’ meeting the following week to once again accuse Buccalo of publicly disparaging and slandering him and Brittany,” the Court concluded.

In addition to the suspension, the Court ordered Judge O’Diam to pay the costs of the disciplinary proceedings.

2021-0971Disciplinary Counsel v. O’DiamSlip Opinion No. 2022-Ohio-1370.

Video camera icon View oral argument video of this case.

A disciplinary case is pending against the daughter. (Mike Frisch)

April 28, 2022 in Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, April 20, 2022

Media Comments, Facebook Activity Require Judge's Recusal In Opioid Litigation

The Tennessee Court of Appeals ordered a trial judge's recusal and vacated a substantive order entered in litigation against an opioid manufacturer based on Facebook posts and a Law360 interview

The trial judge stated during the February 10 hearing that he would hold the Endo Defendants in default and that their former counsel “might be going to jail with or without their toothbrush” “if they had . . . show[n] up” at the hearing. Following the February 10 hearing, the trial judge gave an interview to a Law360.com reporter, and the interview formed the basis for an article that appeared on the website on February 14, 2022. Per the article, the trial judge is quoted as saying, among other things, that the alleged discovery violations by the Endo Defendants were “the worst case of document hiding that I’ve ever seen. It was like a plot out of a John Grisham movie, except that it was even worse than what he could dream up.” Subsequently, on February 15, 2022, the trial judge posted on his personal Facebook page about the apparent lack of local media coverage in this case, stating, “Why is it that national news outlets are contacting my office about a case I preside over and the local news is not interested.” Screenshots of the trial judge’s Facebook page reveal that the page appears to be devoted in part to a re-election effort given a “Re-Elect” picture banner next to his name.

In addition to the general comment regarding the apparent lack of local media coverage of this case, the trial judge’s Facebook activity evidenced several other communications by the judge relative to his Facebook post and the case. After one commenter stated that “You’re not trying to ban drunken bridesmaids on peddle carts,” the trial judge responded, “[N]ope. Opioids.” The commenter then followed up by stating, “I don’t know if you’re going to get the help or platform you need from those with power/deep pockets. Many of Tennessee’s powerful have ties to pharmaceuticals.” The trial judge specifically “liked” this comment.

When another commenter inquired into whether the trial judge could say why the case was newsworthy, the judge responded, “Is a $1.2 Billion opioid case. Our area has been rocked with that drug for decades. Lots of interesting and new developments about the manufacturers in this case.” Other commenters added a number of statements opining on who should be held accountable, following which one person commented, “We do not have a serious local news reporting outfit around here. . . . The Tennessean is a left leaning rag so that leaves the internet to provide people the local ‘news.’” The trial judge “liked” this post and responded that “[t]his is an earth shattering case, especially for our community. Fake news is not always what they publish, but what they choose not too also.”

The court

In our view, this activity by the trial judge positions himself publicly as an interested community advocate and voice for change in the larger societal controversy over opioids, not an impartial adjudicator presiding over litigation. This perception is enhanced when considered alongside the trial judge’s ready participation in the Law360.com article and apparent desire, as expressed on his Facebook page, for more local media coverage. The trial judge appears to us to be motivated to garner interest in this case and draw attention to his stated opposition to opioids within a community that he noted had been “rocked with that drug.”

...In this case, it is clear to us that a reasonable basis for questioning the trial judge’s impartiality exists. Particularly noteworthy here in our view is the trial judge’s engagement on Facebook concerning this litigation, activity that occurred after the trial judge had given the aforementioned interview to Law360.com concerning the case.

Result

Regardless of the specific motivation, however, it is clear here to us that the trial judge’s comments and social media activity about this case are easily construable as indicating partiality against entities such as the Endo Defendants. For this reason, and to promote confidence in our judiciary, we conclude that the trial judge erred in refusing to recuse himself from the case. We therefore reverse the trial court’s order denying the Endo Defendants’ motion for recusal and remand the case to the Presiding Judge of the Thirteenth Judicial District for transfer to a different judge.

(Mike Frisch)

April 20, 2022 in Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, April 12, 2022

Bias Claim Rejected

The Tennessee Court of Criminal Appeals affirmed the denial of relief to a defendant who had pleaded guilty to robbery and then sought the judge's recusal for sentencing

On November 23, 2020, Defendant entered an open guilty plea to robbery. Pursuant to the negotiated plea agreement, Defendant was to be sentenced as a Range II multiple offender. On January 15, 2021, Defendant filed a motion to recuse the trial judge from sentencing him on the grounds that the trial judge, while serving as an assistant district
attorney general in 1990, prosecuted Defendant in a highly publicized trial on three charges of sexual offenses. Defendant averred that the trial judge was prejudiced against him because, during the trial, the trial judge/former prosecutor stated, “[t]here is a dark side to [Defendant] which teachers and coaches don’t see, and when that dark side surfaces, no young girl is safe.” Defendant’s convictions in that case were overturned by the Tennessee Supreme Court. Defendant also alleged prejudice on the grounds that the trial judge prosecuted him on a drug charge in 2002 for which conviction he was sentenced as a Range III persistent offender to a sentence of split confinement with a lengthy period of probation. Defendant pointed out that, by contrast, he was convicted on the same day in a forgery and theft case prosecuted by another assistant district attorney and was sentenced as a Range II multiple offender. Finally, Defendant alleged that the trial judge showed prejudice against Defendant when he remarked at Defendant’s arraignment in this case that it had “been a while” since Defendant was before the court.

At the hearing on the recusal motion

At the conclusion of the recusal hearing, the trial court noted that Defendant’s 1990 trial was “highly publicized” because Defendant was recognized for his athletic ability. The trial court stated, “He’s one of the best running backs that’s ever come out of Sumner County, and I found myself in a difficult position as a prosecutor in this case.”

The trial court denied bias and denied relief.

The court affirmed the sentence. (Mike Frisch)

April 12, 2022 in Judicial Ethics and the Courts | Permalink | Comments (0)

Monday, April 11, 2022

"A Breathtaking Number Of Infractions"

From the web page of the Ohio Supreme Court is a summary of a case scheduled for oral argument tomorrow

Disciplinary Counsel v. Judge Pinkey S. Carr, Case No. 2021-1518
Cuyahoga County

The Board of Professional Conduct recommends a two-year suspension for Cleveland Municipal Judge Pinkey Carr. The board states that the disciplinary case is “without precedent” because of the “breathtaking number of infractions.” Among the judicial misconduct accusations against Judge Carr:

  • Issuing arrest warrants for defendants who didn’t appear for court in the first weeks of the government-issued stay-at-home order for the COVID-19 pandemic.
  • Holding hearings without a prosecutor present.
  • Unilaterally entering pleas for unrepresented defendants.
  • Arbitrarily imposing or waiving fines and court costs.
  • Jailing defendants to compel payment of fines and costs.
  • Creating false court journal entries.

Judge Carr has acknowledged much of the misconduct. However, she objects to the proposed sanction and the board’s decision about mitigating evidence related to her health. Because the judge has objected to the board’s conclusions, the Supreme Court of Ohio will hear oral argument in the matter.

Misconduct Complaints Span Two Years
Judge Carr was elected to the Cleveland Municipal Court in November 2011. The alleged misconduct occurred during a two-year period beginning in December 2018. In 126 pages of stipulations, Judge Carr has admitted to nearly all the allegations made by the Office of Disciplinary Counsel, which investigated the complaints against the judge. 

The professional conduct board’s report recounts “mere portions of the factual record” to illustrate the findings and support for the proposed sanction.

Judge Ignores Pandemic Closures, Behaves Inappropriately, Unfairly Jails Defendants
In mid-March 2020, in alignment with guidance issued by Chief Justice Maureen O’Connor, the municipal court’s presiding judge ordered the rescheduling of civil and criminal cases to prevent the spread of the coronavirus and to protect the public and court employees. Judge Carr, however, continued to preside over her docket the next week. Criminal defendants who were not in jail followed the court order and did not appear for hearings. During a three-day period, Judge Carr noted in official court records that more than 30 defendants failed to appear. She ordered their arrests. She also set bonds from $2,500 to $10,000 in many of those cases. When local news media interviewed the judge, she lied about issuing arrest warrants. She also lied to her presiding judge about the actions.

In addition, Judge Carr routinely held hearings for defendants’ first appearances without the prosecutor, saying at times, “Let’s see how much we can get away with.” She arbitrarily waived fines based on defendant birthdays. She stated in court journal entries that prosecutors had amended charges, when she had made the changes unilaterally. The disciplinary complaint against her documented 34 incidents of the judge’s “inappropriate humor” and “frivolous and often demeaning dialogue with defendants.”

Judge Carr also scheduled hearings to determine defendants’ ability to pay court costs and fines without informing them or the clerk’s office of the hearing dates. When a defendant didn’t attend the hearing, she would issue an arrest warrant and set a $2,500 or higher bond. Judge Carr stipulated to six instances of incarcerating defendants to force the payment of fines and costs.

In open court, the judge discussed with her staff and defendants a television show called “Paradise Valley” about a fictional Mississippi strip club, stating what her “club name” would be. The judge would joke about accepting kickbacks on fines and arranging “hook-ups” from defendants for food, beverages, and products such as carpeting or storage space.

Panel Identifies Rule Violations, Reviews Other Factors
The panel that reviewed the allegations found Judge Carr engaged in voluminous violations of the rules governing the conduct of Ohio judges and of lawyers, including rules requiring judges to act at all times to promote public confidence in the judiciary’s independence, integrity, and impartiality; to uphold and apply the law; and to be patient, dignified, and courteous to those the judge deals with in an official capacity.

The board report stated:

“She ruled her courtroom in a reckless and cavalier manner, unconstrained by the law or the court's rules, and without any measure of probity or even common courtesy. Her actions could not help but seriously compromise the integrity of the court in the eyes of the public and all who had business there.”

The panel considered aggravating circumstances that could increase the suggested sanction and mitigating factors that could lead to a lesser penalty. Judge Carr asked that her diagnosed health conditions be considered as mitigating. The panel found no existence of a health disorder that caused the misconduct. However, the panel considered Judge Carr’s voluntary and ongoing participation in treatment as a mitigating factor. In recommending the suspension with no part stayed, the panel noted that if Judge Carr had not cooperated with the disciplinary process and committed to treatment, including a contract with the Ohio Lawyers Assistance Program (OLAP), an indefinite suspension would have been warranted.

The professional conduct board adopted the panel’s findings and proposed suspension. The report recommends that the judge be immediately suspended without pay for the term of her suspension. It also recommends that the judge’s reinstatement to the practice of law depend on her compliance with the OLAP agreement and recommendations and a report from a qualified healthcare professional that she can return to practicing law competently, ethically, and professionally.

Judge Requests Reduced Suspension
In her objections, Judge Carr asks for a stay of 18 months of the suggested two-year suspension. She argues that when considering the role of her health, the board panel looked at causation rather than whether a disorder contributed to her misconduct. Her doctor’s thorough evaluation and diagnosis meets the burden of showing that she was entitled to greater mitigation than the board allowed when deciding on a sanction. And no additional complaints about her conduct on the bench have been made since she began receiving appropriate treatment, she adds.

Her brief also requests additional consideration of other punishment she has received from “pervasive negative reporting” on the events. The news media coverage has harmed her reputation in the Cleveland community causing her “additional severe emotional angst,” her brief states.

Disciplinary Counsel Disagrees With Judge’s Arguments
The disciplinary counsel maintains that the conduct rules require a “nexus” between the health disorders and the misconduct. The board determined that a connection wasn’t shown, for several reasons. The board was concerned that Judge Carr didn’t realize her conduct in court was problematic regardless of knowing the cause. The board also couldn’t attribute her misconduct to her health conditions at the time. Judge Carr’s disregard for the law for two years couldn’t be cast as momentary lapses in judgment caused by her health conditions, and the problems seemed to manifest only when she was on the bench, the board stated. The disciplinary counsel points out that Judge Carr was given credit for her commitment to treatment under a different rule that considers other mitigating factors.

The disciplinary counsel argues that negative news media publicity doesn’t qualify as a mitigating factor under the conduct rules, adding that Judge Carr chose to make false statements to the media about her actions during the early weeks of the pandemic. To adopt Judge Carr’s proposed six-month actual suspension betrays the public trust in the judiciary and minimizes her misconduct, the disciplinary counsel concludes.

Kathleen Maloney

(Mike Frisch)

April 11, 2022 in Judicial Ethics and the Courts | Permalink | Comments (0)

Friday, April 1, 2022

"Salty" Judge No Longer Sitting With Conditions

The Kansas Supreme Court has terminated supervision of a judge conditionally suspended for "quite troubling" behavior

On June 14, 2021, the court conditionally stayed the suspension and restored Judge Cullins' judicial duties for the remainder of the suspension period as long as Judge Cullins complied with his plan for training and counseling (the Plan). The court further ordered Allyson Christman, the then Director of Personnel and now Chief Human Resource Officer, in the Office of Judicial Administration, to monitor Judge Cullins' compliance with the Plan. Finally, the court ordered that Judge Cullins would remain subject to the terms and conditions of the Plan until the court formally discharged him upon his demonstration of his successful compliance with the Plan's terms in a motion to lift the suspension. In re Cullins, 313 Kan. 658, 487 P.3d 374 (2021).

Judge Cullins now moves the court to lift the suspension and formally discharge him from the terms of the Plan. In support, Judge Cullins submitted his and Christman's declarations of his successful completion of the terms of the Plan. No one voiced an objection.

ABC News had reported on his suspension

 A foul-mouthed Kansas judge accused of bigotry who cursed at courthouse employees so often that a trial clerk kept a “swear journal” documenting his obscene outbursts was on Friday suspended from the bench for one year.

The Kansas Supreme Court called Montgomery County Judge F. William Cullins’ behavior “quite troubling” while meting out a punishment that was harsher than the censure and coaching that a disciplinary panel recommended last year.

“He has intimidated and publicly humiliated court employees. He has shown bias and the appearance of bias by his insulting and careless remarks, even while on the bench and presiding over hearings. By his coarse language in the courthouse, he has sullied the dignity and propriety of the judiciary,” the court said in its decision.

The ruling is effective immediately, but the court said it would consider waiving the remaining suspension after 60 days if Cullins enters into an approved plan for training and counseling. It also ordered Cullins to pay all the costs of his disciplinary proceeding.

His attorney did not immediately respond to an email seeking comment.

The court agreed with the disciplinary panel that Cullins' conduct violated judicial canons of decorum, integrity and impartiality. The panel also found he harmed public confidence in the integrity of the judiciary and that his conduct exhibited unfairness and unsound character.

Cullins acknowledged during his December 2019 disciplinary hearing that he frequently cursed in his conversations with employees and attorneys, and was sometimes unprofessional in his conduct, but he insisted he didn’t abuse court staff or direct vulgar and sexist terms at female workers. He called his profanity a lifelong habit, saying he has a “salty” personality that some people see as “down to earth.”

The high court affirmed the disciplinary panel's finding that Cullins’ use of foul, derogatory words directed at women manifested a clear gender bias.

It also addressed an instance in which Cullins was recorded in court referring to an out-of-state Black athlete as “not even a Kansas boy” and telling a Black male resident, “you’re a Kansas boy” — language that could be considered demeaning to an African American man.

Although the panel found credible Cullins’ testimony that he was referring to geographic origin and didn't intend racial derision, it said the term could be interpreted as bias and therefore violated judicial rules. The high court agreed.

“Regardless of inflection, tone, or local custom, this court has little trouble finding there was clear and convincing evidence to support the panel's conclusion that the statements made by (Cullins) during these bond hearings created a reasonable perception of racial bias,” according to the ruling.

(Mike Frisch)

April 1, 2022 in Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, March 23, 2022

Circumstantial Evidence Of Grope Sufficient

The Massachusetts Supreme Judicial Court imposed sanctions on a probate court judge for findings of groping a court employee at a judicial conference and false testimony about the incident

we suspend the respondent without pay for a reasonable time or until further order of this court.

The incident

[The victim]  saw the Respondent make his way toward their table; he approached her from behind. As the respondent passed behind her stool, the complainant felt a hand grabbing her left buttock and squeezing it for several seconds. The respondent then joined the group at the complainant's table, standing directly to the complainant's left, and eventually offered to buy everyone at the table a drink.

Shocked and unsure what to do, the complainant did not visibly react to being grabbed and after approximately between ten to fifteen minutes excused herself from the table and made her way out of the restaurant. Prior to leaving, she did not reveal to anyone what had occurred, although she tried to alert one of her colleagues at the table by raising her eyebrows and giving the colleague "pointed looks." The colleague recalled that the complainant gave her "a particular look with her eyes. . . very wide-eyed" about five minutes after the colleague observed the respondent pass behind the complainant and approach the table, but the colleague did not understand what the complainant was attempting to communicate.

She reported the incident a few days later.

Sufficiency of evidence of unwanted touching

Although it is true that there was no direct evidence that the respondent touched the complainant, there was sufficient circumstantial evidence from which a fact finder could determine that there was a high probability the judge, and not someone else, did so. It is undisputed that the respondent passed behind the complainant -- the respondent and two of the complainant's colleagues confirmed as much -- and she maintained that he did so at the same moment the unwanted touching occured.

His story

There is also the fact that, ten days after first being made aware of the allegations by the Chief Justice of the Probate and Family Court, the respondent created and submitted a fictional version of events wherein he admitted to touching the complainant on the evening in question but tried to pass it off as unintentional.

Sanction

the commission has recommended, most prominently, that the respondent be suspended without pay for a reasonable time to permit the executive and legislative branches to consider, if they wish, whether the respondent should retain his judicial office.  The respondent, in turn, argues that such a sanction is "greatly excessive." He notes that he has already been removed from judicial duties for more than two years while this matter has been pending. In addition, he suggests that he has been "broadly" and "publicly" vilified and embarrassed during the course of these proceedings. As such, he maintains that no further sanctions are warranted. We agree that the sanction recommended by the commission is severe and one that, fortunately, has rarely been warranted.

WCBV 5 reported on the proceedings before the hearing officer

Retirement or removal from office are the recommendations emerging from a report on a hearing which investigated a Massachusetts Associate Probate and Family Court judge who is accused of inappropriate conduct during a two-day judicial conference in April 2019.

Worcester Probate and Family Court Judge Paul Sushchyk was removed from hearing cases and placed on administrative assignment earlier this year. A hearing in the case was held in July.

Sushchyk is accused of allegedly touching the buttocks of a woman who worked in the administrative office of the Massachusetts Probate and Family Court Department.

The incident reportedly happened at the Ocean Edge Resort and Golf Club in Brewster on April 25.

Sushchyk also allegedly removed a flask of whiskey out of his coat pocket.

The Commission on Judicial Conduct charges that Sushchyk has engaged in willful judicial misconduct that brings the judicial office into disrepute, as well as conduct prejudicial to the administration of justice and unbecoming a judicial officer and has violated the Massachusetts Code of Judicial Conduct.

The charges against Sushchyk came following the investigation of a complaint filed with the Commission on Judicial Conduct by Chief Justice of the Supreme Judicial Court Ralph Gants on June 4, 2019.

Bertha Josephson, who presided over the hearing for the judge, determined that Sushchyk provided false statements to the investigation and violated rules for judicial conduct. Her report, issued this week, concludes with the recommendation that Sushchyk retire or be removed from office.

Oral argument is linked here (courtesy Suffolk University Law School). (Mike Frisch)

March 23, 2022 in Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, March 15, 2022

Anything But That

A  judge of the County, Family and Surrogate's Courts in Hamilton Count has been admonished by the New York Commission on Judicial Conduct for conduct described in a press release

During her 2019 campaign for judge of the Hamilton County, Family and Surrogate’s Courts, Judge Coffinger (1) violated the prohibition on political fundraising by advertising tickets up to $35 apiece for a local Republican picnic and (2) distributed a misleading sample ballot that falsely identified one of her Republican primary opponents as a Democrat shortly before the election.

In admonishing Judge Coffinger, the Commission noted that she acknowledged her misconduct.

The picnic

On June 3, June 9, June 17 and June 21, 2019, respondent posted to her campaign's Facebook page an invitation to the Hamilton County Republican picnic. It read, "You are Invited 2019 Republican Picnic and Meet the Candidates Day!" The invitation offered food, drinks, "Music, Bingo, Door prizes and morel:' Ticket prices ranged from $12 to $35. The invitation also read, "Tickets - See any Republican Committee Member." 

The Democrat who wasn't

In 2019, there were approximately 2,659 registered Republican voters in Hamilton County, and approximately 954 registered Democrats.

At all times relevant to this charge, Ms. Purdue was a registered Republican, respondent knew Ms. Purdue to be a Republican, and respondent knew that Ms. Purdue was running against her in the Republican primary. Respondent also knew that Ms. Purdue had been the elected Hamilton County District Attorney since 2012, and respondent believed Ms. Purdue had widespread name recognition among Republican voters in the county.

A winning strategy

Respondent won the primary election with a total of 748 votes, defeating Ms. Purdue, who received 351 votes, and Mr. Hyde, who received 200 votes. Respondent thereafter won the general election in November 2019 with a total of 1,446 votes, defeating Ms. Purdue, who received 1,020 votes on the Democratic line. Ms. Purdue was nominated by the Democratic Party for the general election without a primary and with no opponents, notwithstanding that she was a registered Republican.

(Mike Frisch)

March 15, 2022 in Judicial Ethics and the Courts | Permalink | Comments (2)

Tuesday, March 8, 2022

Thunder Road

The Georgia Supreme Court rejected a number a stipulated violations and reprimanded a judge for improperly dismissing cases involving proffered guilty pleas

The court concludes that this stipulation did not establish misconduct

As for the facts underlying these charges, Judge Baker acknowledges in the discipline by consent agreement that in May 2015, she had a court security officer drive his personal vehicle to a store to pick up alcoholic beverages and deliver them to a private event celebrating Judge Baker’s appointment to the bench; that around September 2016, she had a court security officer drive his personal vehicle from the courthouse to a store in Cobb County to pick up a chair and deliver it to the judge’s personal residence in Atlanta; that the following month, she had a staff member assist her in returning the chair by driving to the judge’s residence, where the judge loaded the chair into the staff member’s vehicle, and then driving to the store while the judge followed in her own vehicle, which the staff member claimed caused her to get behind on her daily work assignments; and that on a Friday afternoon in June 2018, Judge Baker emailed two staff members and requested that one of them bring her robe, robe bag, and a stole from the courthouse to her personal residence for an event “unrelated to court business” that Sunday, and that a staff member delivered the items later that afternoon.

Judge Baker also acknowledges that from May 2015 through October 2019, she periodically asked staff members to contribute their own money to an office fund, to which Judge Baker also contributed, to purchase food and other items for communal use in chambers, to shop for the items, and, on one occasion, to return an item. Judge Baker further acknowledges that evidence exists with which the Director could properly prove that from July through November 2016, she had the staff member who helped her return the chair use the staff member’s personal vehicle to drive Judge Baker to attend private events and to run errands unrelated to court or city business.

Misconduct or not

In any event, we need not address these issues further, because whether or not we consider these counts, we would conclude that a public reprimand is an appropriate sanction in this matter for the reasons stated below.

In court

Judge Baker acknowledges that her dissatisfaction with the factual basis for guilty pleas presented by the assistant city solicitor was not a legal basis for dismissing criminal charges, that she instead should have simply rejected the pleas, and that her failure to do so violated clearly established law.

Rejected stipulated violations

Judge Baker acknowledges that she periodically contacted the Solicitor to provide both positive and negative feedback on the performance of prosecutors in her courtroom and on several occasions requested that he remove prosecutors from assignment to her courtroom. The discipline by consent agreement characterizes these communications as improper “meddling” with the personnel decisions of the Solicitor. But there is no indication that Judge Baker took, or threatened to take, any adverse action on cases unless the Solicitor took some specific action.

The agreement cites no authority, and we have found none, to support the view that the communications as alleged violate Rule 1.2 (A).

For the accepted misconduct

Having reviewed the record, the Court now accepts the discipline by consent agreement and orders that Judge JaDawnya Baker receive a public reprimand for her periodic improper dismissal of cases presented to her for guilty pleas.

(Mike Frisch)

March 8, 2022 in Judicial Ethics and the Courts | Permalink | Comments (0)

Isolated Intemperate Remarks Did Not Establish Judicial Bias

The Connecticut Supreme Court rejected claims of judicial bias in a divorce trial that were raised for the first time on appeal.

The court found isolated "intemperate" comments of the judge did not establish bias

At the outset, it is important to note that the claim of judicial bias is a serious matter, which we do not take lightly. We do not, however, review such allegations in a vacuum, divorced from the context in which the events took place. In order to understand that context, it is important to understand the following background. During the course of the pretrial period, the plaintiff had at least three different attorneys. In addition, the plaintiff, who is an attorney, also entered an appearance as a self-represented party. The trial court allowed the plaintiff to argue on her own behalf when she was in between attorneys and did not have counsel for a particular hearing or conference. This was not a case of hybrid representation, however. Once represented by counsel, the trial court repeatedly reminded the plaintiff, during multiple hearings and conferences, that she could not interrupt the proceedings and must speak through her counsel. Despite the court’s repeated reminders about not interrupting and speaking through her counsel, the plaintiff continued to interrupt the proceedings.

When a zoom-held hearing had a glitch

As a result, one can hear the trial court whispering during the recess. The plaintiff points to one of the statements made during this recess in support of her plain error claim—namely, the trial court said, ‘‘I just am not gonna have that stupid woman talk.’’ Thereafter, the plaintiff’s attorney returned to the call and said ‘‘[h]ello.’’ The defendant’s attorney also said ‘‘[h]ello.’’ The trial court then said, ‘‘[w]e are returning on to the record then.’’ The conference then continued for more than one hour.

The plaintiff then interrupted again, and the court offered another recess. At that point, the trial court clearly said, ‘‘[t]ake a recess.’’ The plaintiff points to statements made during this recess that can be heard on the audio recording. First, while conversing with the court clerk, off the record, regarding the plaintiff’s late disclosure of an expert witness, the trial court commented that, ‘‘[a]t least she’ll pay for an expedited [report].’’ One can then hear laughter, and the trial court said, ‘‘I know, it’s horrible.’’ A few seconds later, the trial court said: ‘‘It’s because of Marianna . . . . She’s not sick.’’ The trial court also said, ‘‘[s]he’s gonna be a mess until we get it done.’’ After the plaintiff finished consulting with her attorney, the plaintiff’s attorney and the defendant’s attorney returned to the call, and the trial court clearly stated: ‘‘We’re back on the record in the matter of Ponns Cohen.’’

A review of the audio recording reveals that these comments were made by the trial court in frustration during recesses from a telephonic conference, in which the plaintiff repeatedly interrupted the proceedings and ignored the trial court’s repeated instructions that she must speak through her counsel. The trial court granted multiple recesses in order to accommodate the plaintiff and to allow the plaintiff to confer with her attorney, but the interruptions continued.  Significantly, there is no indication that the trial court’s annoyance with the plaintiff’s ongoing misbehavior had any effect on the court’s rulings; to the contrary, at the end of this conference, the trial court allowed the plaintiff to disclose her expert, despite her failure to comply with the trial management orders regarding the expert disclosure. Furthermore, a review of the entire record demonstrates that the trial court treated the plaintiff fairly and with consideration throughout the lengthy proceedings. Indeed, the trial court granted many of the plaintiff’s numerous requests for continuances, over the objections of the defendant’s attorney. In doing so, the trial court acknowledged and sympathized with the plaintiff’s health issues and family emergencies. Therefore, although the trial court’s comments were ill-advised, we cannot conclude that they ‘‘constitute[d] an error that was so obvious that it affect[ed] the fairness and integrity of and public confidence in the judicial proceedings,’’ and an error ‘‘of such monumental proportion that [it] threaten[ed] to erode our system of justice and work a serious and manifest injustice on the aggrieved party.’’ (Internal quotation marks omitted.) State v. Silva, 339 Conn. 598, 620–21, 262 A.3d 113 (2021).

Result

In light of the isolated nature of the comments, the fact that they did not reflect an opinion derived from an extrajudicial source, and the trial court’s ultimate award to the plaintiff of approximately 50 percent of the marital assets—hardly an outcome bespeaking bias on the part of the decision maker—we cannot conclude that there was an obvious error that resulted in manifest injustice. These isolated comments would not lead a reasonable person to question the judge’s impartiality in this case. Instead, a review of the record reveals that, despite these comments, the trial court repeatedly accommodated the plaintiff and patiently sought to unravel the morass of discovery and procedural issues that occurred during this litigation, without declaring a second mistrial. Accordingly, we cannot conclude that the doctrine of plain error requires reversal in the present case.

March 8, 2022 in Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, February 24, 2022

Mazel Tov!

The New York Commission on Judicial Conduct admonished a judge for misuse of a court employee's time and issues relating to her daughter's regular presence at the court's magnetometer station

From the fall of 2015 to May 2016 when the Bat Mitzvah [of the judge's daughter] took place, [secretary] Ms. Ritter provided assistance on a regular basis in the planning of respondent's daughter's Bat Mitzvah. Using her New York State Unified Court System email address, Ms. Ritter sent numerous Bat Mitzvah related emails to various Bat Mitzvah vendors and to respondent.  Many of Ms. Ritter's emails to vendors identified Ms. Ritter at the end of the email as "Secretary to Honorable Jill S. Polk" and included the address of the Schenectady County Family Court. Ms. Ritter sent most of the Bat Mitzvah related emails during non-lunch hours on weekdays. In addition, respondent and some of the Bat Mitzvah vendors sent Ms. Ritter emails regarding the Bat Mitzvah, most of which were sent only to Ms. Ritter.

Also involved was her daughter's distracting officers from their duties

Respondent's daughter's presence at the magnetometer station created a complication for the court officers which was the concern that respondent's child would be injured if there was an altercation among litigants in that area. At times, respondent's daughter's presence at the magnetometer impeded the security work of the court officers.

(Mike Frisch)

February 24, 2022 in Judicial Ethics and the Courts | Permalink | Comments (0)

Saturday, February 19, 2022

Judicial Misconduct Bars Retrial On Double Jeopardy Grounds

Do findings of judicial misconduct create a double jeopardy bar to retrial?

The New Mexico Supreme Court answered yes  on the law and facts of a felony conviction

The State belatedly filed its witness list on March 1, 2017, and eight days later, on March 9, 2017, filed an amended witness list to correct an address. That same day, nine days after the discovery deadline and five days before trial, the State provided Defendant with a CD containing audio recordings of statements made by the State’s witnesses and Defendant in interviews with the police.

The day after receiving the CD, on Friday, March 10, 2017, [defense counsel] Seeger filed a motion to continue the jury trial. Seeger argued that he needed more time to review the CD in order to adequately prepare for trial and that, without more time to prepare, Defendant would be denied his right to effective assistance of counsel. That same day, the parties appeared before the judge for a pretrial conference.

At the pretrial conference, the judge denied the motion for continuance without hearing any argument. From that point forward, Seeger remained determined to get a continuance, and the judge remained committed to proceed with trial as scheduled. Their intransigence forms the root of the issue in this case.

When the effort failed

During the trial, Seeger refused to participate in voir dire, challenge any jurors, examine any witnesses, or participate in the selection of jury instructions. Seeger also declined to proffer an opening statement or a closing statement. However, he made three motions for mistrial—all based on assertions of ineffective assistance of counsel resulting from the State’s late disclosures, and, consequently, his asserted inability to prepare for trial.

While the attorney did not speak, the jury did

The jury found Defendant guilty of felony aggravated battery against a household member with great bodily harm, and Defendant appealed to the Court of Appeals.

Which reversed on ineffective assistance but rejected the claim of double jeopardy

Defendant petitioned this Court for a writ of certiorari to review the Court of Appeals’ conclusion that Breit does not apply, and even if it does, the judge’s conduct did not meet Breit’s criteria to bar retrial.

The Breit holding on double jeopardy applies to judicial misconduct

In fact, the reference to the “official” and “official misconduct” is certainly broad enough to include judicial conduct. This was no accident.

Guidance

we echo the guidance offered to our district courts by the Court of Appeals as to how to respond when an attorney is threatening to withdraw from participation in a criminal trial. “[T]he district court can order new counsel to represent the defendant,” it can “impose a sanction on the culpable attorney while at the same time granting a continuance,” or, should “the attorney still refuse[] to participate in the face of a clear order to do so, the court can invoke its contempt powers against the obstructionist attorney.”

Here, double jeopardy bars retrial

we conclude that under the narrow facts of this case, the judge acted in willful disregard of the resulting reversal thus satisfying the third prong of Breit. Retrial is barred.

(Mike Frisch)

February 19, 2022 in Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, February 10, 2022

Bus Story

The Washington State Supreme Court has dismissed judicial misconduct charges

The Commission on Judicial Conduct (Commission) ruled that Judge David S. Keenan, a King County Superior Court judge, violated the Code of Judicial Conduct (CJC or Code) when he approved a bus advertisement for North Seattle College. The ad pictured him and stated, in part, “A Superior Court Judge, David Keenan got into law in part to advocate for marginalized communities.” North Seattle College is a nonprofit community college where Judge Keenan received both his high school and his associate’s degrees. The ad ran for three weeks as part of North Seattle College’s fall enrollment campaign.

Judge Keenan’s conduct did not violate Rules 1.1, 1.2, or 1.3 of the Code. He did not violate his duty to be, and to appear, impartial, and he did not abuse the prestige of his office. We therefore reverse the Commission’s decision and dismiss the charges.

Conclusion

Judge Keenan did not violate the Code when he approved a bus ad to support his nonprofit alma mater, North Seattle College. The language that he “got into law in part to advocate for marginalized communities” did not violate his duty to be, and to appear, impartial; thus, he did not violate Rule 1.2. The ad did not violate Rule 1.3 because the rules, read as a whole, permit judges to promote nonprofit educational institutions that they credit for their success, in an effort to attract the most qualified people to the legal profession. As a result, Judge Keenan did not violate Rule 1.1, either.

(Mike Frisch)

February 10, 2022 in Judicial Ethics and the Courts | Permalink | Comments (0)

Sunday, January 30, 2022

Pandemic Exception And Judicial Fiat

The Louisiana Supreme Court declined to impose judicial discipline and to remove  a judge who was sworn in after age 70 due to pandemic-related delays, despite an impediment in the state Constitution

The sole issue before us is whether this Court should accept the recommendation of the Commission and remove Judge Matthews from office. Article V, § 25(C) of the Louisiana Constitution vests this court with exclusive and original jurisdiction in judicial disciplinary proceedings and provides the substantive grounds for disciplinary actions against a judge.

The Commission argues that Judge Matthews is constitutionally barred from remaining in office pursuant to the plain and unambiguous language of La. Const. art. V, § 25(B), having reached the mandatory retirement age of seventy prior to the commencement of her term. Her continued retention of judicial office is therefore in violation of Canons 1 and 2A of the Code of Judicial Conduct. See Small v. Guste, 383 So. 2d 1011, 1014 (La. 1980) (a judge who remains in office past the mandatory retirement age is guilty of misconduct). However, the Commission suggests a judicially created exception to La. Const. art. V, § 23(B) may be appropriate given the unique circumstances present and that this issue has arisen due to the executive branch’s action in delaying a judicial election.

Judge Matthews had qualified to run for the office prior to reaching 70

Exercising this discretion, we find that judicial discipline is not warranted in this matter. The facts in this case are driven by the pandemic and subsequent proclamations issued by the governor which delayed the elections. But for these delays, Judge Matthews would have taken office prior to attaining the age of seventy.

For the foregoing reasons, the Commission’s recommendation is rejected and no discipline is imposed. We emphasize that this decision is limited to the individualized circumstances surrounding this case and election.

Chief Justice Weimer dissented

By clear and unambiguous language, the Louisiana Constitution prohibits anyone over the age of 70 to serve as a judge unless that individual began serving a term of office as a judge prior to turning 70.

...When the language of the constitution is clear and unambiguous, it must be applied as written. This court is not free to create an ambiguity where none exists, or to revise or rewrite the language of the constitutional provision under the guise of interpretation. City of New Orleans v. Louisiana Assessors’ Ret. and Relief Fund, 05-2548, p. 30 (La. 10/1/07), 986 So.2d 1, 22. Thus, the constitution cannot be altered or amended by judicial fiat.

With regrets

By all accounts, Judge Matthews has served well and is a respected jurist. The Judiciary Commission indicated in brief to this court, and I agree, that her character and her right to initially qualify to seek judicial office are not in question. The facts of this case dictate an unfortunate result. I have devoted significant time and effort to evaluating the law to determine if there was a legal path to enable Judge Matthews to continue to serve. This nation prides itself on being a nation of laws, and not of men or women.   The constitution emanates from the people. The people expect judges to apply the law as written. Although I dislike the result in this case, ultimately I am constrained to apply the law as it is written, despite the equities in Judge Matthews’ favor.

Justice Crain also dissented and finds no basis for a pandemic exception

I am sympathetic to Judge Matthews’ situation. Through no fault of her own, the election for this judicial seat was postponed due to Covid-19 until after Judge Matthews turned seventy. She did nothing wrong to create the predicament that now disqualifies her from serving. Sympathy, however, is not a basis for disregarding or amending the constitution.

Justice McCallum agreed

I respectfully dissent. This case presents yet another example of an unfortunate consequence of the pandemic and the government’s reaction to it; namely, the decision to change the date of the election. Through no fault of her own, Judge Matthews became a casualty of this decision. Although empathetic to Judge Matthews’ situation, I do not find any circumstance by which this Court may ignore the express and unambiguous terms of the Louisiana Constitution and, in my view, her age at the time of the election prevents her from remaining on the bench.

 

January 30, 2022 in Judicial Ethics and the Courts | Permalink | Comments (0)

Friday, January 28, 2022

Consenting Adults And Judicial Junk

The Kansas Supreme Court has censured a former magistrate based on the below findings

"1. Respondent used the social media website known as Club Foreplay ('C4P') which he described as 'a dating website for couples.'
"2. Respondent maintained an account on the C4P website on and off for a couple of years.
"3. Respondent used the website to give access to other users to view nude and partially nude photos of himself, including a picture of Respondent standing in water with his penis visible.
"4. Respondent sent sexually revealing photographs of himself to the complainant's wife.
"5. Respondent requested that complainant's wife send sexually explicit photos to him.
"6. The parties stipulated that the sexually revealing photographs were not available to be viewed by any C4P subscriber without permission from the Respondent. He also claims the photographs were not available to the general public. However, as with any social media posting, the photographs could be disseminated to the general public once they are released.

Sanction

Ultimately, the question whether a respondent violated a rule is a question for this court and subject to de novo review. The non-filing of exceptions does not bind this court. However, in these unique circumstances concerning a complaint against a retired lay magistrate judge and where neither party has filed exceptions and each has affirmatively accepted the hearing panel's conclusions and resolution, we accept the respondent's stipulations and take no additional action. While we appreciate the concurring opinion's point of view, it reflects a position that no one in the proceeding has taken or argued before us. An inquiry panel concluded there were rule violations, a hearing panel unanimously concluded there were two rule violations, and even the respondent has accepted the determination that there were violations of Canon 1, Rule 1.2 and Canon 3, 3.1(C), and the panel's recommendation of public censure. Because everyone involved in this case has come to the same conclusion, we see no need to  further question their resolution.

STEGALL, J., concurring:

I concur in the result reached by the majority to take no further action in this matter. But in my judgment, while Judge Marty K. Clark's behavior was embarrassing, foolish, and grossly immoral, it was not a violation of any of our rules governing judicial conduct. Because—let us be clear—the behavior we are talking about consists entirely of the lawful, private, consensual sexual practices of Judge Clark. Behavior that was only discovered by the Examiner [of the Commission on Judicial Conduct]  and the Commission because it was disclosed by a disgruntled participant in that behavior.

To be sure, there was a time in our society when private, consensual sexual practices were not deemed off-limits to government regulation. For good or ill (or good and ill), that time has passed. Through a slew of judicial decisions, society has by now clearly decided that sexual conduct between consenting adults is none of the government's business.

The concurrence decries the faux outrage and the rise of the surveillance state

So who has really been scandalized? As with the excessive rhetoric, the legal justifications given by the Examiner and panel in this case are thin cover for the naked embarrassment—and the accompanying need to close ranks and restore a facade of judicial superiority—felt by all.

...I may be an unexpected defender of "consensually non-monogamous" judges— and I have no difficulty condemning adultery as morally destructive—but above all else, the rule of law condemns the arbitrary and unaccountable power of the state to pick winners and losers, reward friends and punish enemies, and protect its own interests above the public's. Such abuses and the hypocrisy they reveal are the real threat to the legitimacy and integrity of the judiciary. The rule of law is not so weak it will collapse in the face of a few bedroom peccadillos or the occasional clownish, embarrassing episodes of official misadventure. But it is not so strong it can long endure the misrule of arbitrary double standards—which amount to a special kind of breach of the social contract.

An objection may be quickly raised that the moral content and quality of the personal character and integrity of our public officials matter. And more, that if a person becomes a public official like a judge, that person has agreed to make his or her private life a matter of public interest. There is real truth to this. But it is a grave mistake to think that either the Commission, the Examiner, or this court represent the mores of the
public—mores which, as every honest political observer would admit, prove to be inscrutable at times. Indeed, even if such mores were knowable, by what right would we claim the authority to enforce the moral qualms of the public of its behalf?

As to rhetoric of the former judge's adversaries

The Examiner and panel in this case have acted as grand inquisitors on behalf of an allegedly scandalized public. The Examiner's filings below passionately decry Judge Clark's behavior—quoting In re Singletary, 61 A.3d 402, 412 (Pa. Ct. Jud. Disc. 2012), for the claim that the public does not want its "judges to be conducting photo sessions featuring the judicial penis and then to be sending the photos over the electronic airwaves to another person—thereby placing that person in a position to further publish the photos to anyone he or she may deem deserving." At oral argument, the Examiner likewise denounced Judge Clark's behavior. Judge Clark was described as "grooming his private organs for purposes of taking a photograph . . . not for him to look at himself" but to "give to other people." Which "in my opinion," the Examiner continued, "does nothing to enhance the integrity of the judiciary."

And a shout out to Austin Powers 

Swinger, baby, yeah!

Beneath the robes

We are all sinners. Acknowledging this truth is one of the pillars supporting the rule of law itself...

Judges are not "angels"—to put it in Madisonian terms. See The Federalist No. 51 (Alexander Hamilton or James Madison) ("If men were angels, no government would be necessary."). And the purpose of the Code of Judicial Conduct is not to protect or project an illusion of judges as angelic demigods or Mosaic lawgivers. It is quite the opposite—to guard against the very real danger of judges as ordinary human beings tempted to abuse their power in vain and self-interested ways. The Code protects very practically against official and public misdeeds—it is not concerned with preserving judicial authority grounded in moral superiority. To the contrary, the legitimate exercise of judicial authority flows from the people acting under a constitutional process, not from any innate moral qualities possessed by the judge.

Concluding

Given all of this, I concur in judgment because I find no violation of the judicial codes of conduct. Of course, no one should read in this conclusion a defense of judges-gone-wild or of any other misdeed or lapse in character. After all, "go, and sin no more" (John 8:3-11) remains an apt and fitting conclusion to every story like this one.

(Mike Frisch)

January 28, 2022 in Judicial Ethics and the Courts | Permalink | Comments (0)

Saturday, January 22, 2022

No To Stoned Judges

An opinion issued last year by the Maryland Judicial Ethics Committee

Issue: May a judicial appointee obtain and use medical marijuana?

Answer: No

The committee considered ethics opinions from other states, particularly California on a judge's proposed grow license as well as its own prior opinion

The Committee concluded that as long as “federal laws make the possession, use, manufacturing and/or distribution of marijuana (cannabis) illegal, a judicial [employee] may not participate in the growing, processing, or dispensing of the substance regardless of the purpose.”

The California Committee on Judicial Ethics Opinions reached a similar result in California Judicial Ethics Formal Opinion 2017-010, citing this Committee’s Opinion No. 2016-09 and the Washington Judicial Ethics Advisory Committee Opinion 15-02.

Just say no

In short, the applicable legal landscape on which that opinion was based has not significantly changed since 2016. The facts here differ only in that the Requestor would be a user rather than a grower, processor, or dispenser of medical cannabis. We are not persuaded that that difference supports a different result.

(Mike Frisch)

January 22, 2022 in Judicial Ethics and the Courts | Permalink | Comments (0)

Spouse May Appear But Not As Judge

A recent opinion of the Maryland Judicial Ethics Committee permits the use of a family photograph with the judge-spouse of a political candidate so long as no judicial connotation derives therefrom

In balancing the requirements of the Code and the candidate spouse’s interest in mounting an effective campaign, we believe that the Requestor’s photograph may be used in family photographs so long as the Requestor’s title or office is not mentioned, there are no visual elements identifying the Requestor as a judge, and no explicit endorsement is featured. We
recognize that family photographs are important fixtures in political campaigns and the absence of a spouse in such a photograph would invite speculation and misrepresent to voters the candidate spouse’s family situation.

(Mike Frisch)

January 22, 2022 in Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, December 28, 2021

Knuckleheads

Disciplinary charges have been filed by Ohio Disciplinary Counsel alleging misconduct by a Cuyahoga County Court of Common Pleas judge.

In one matter, he allegedly browbeat a defendant into pleading guilty

Respondent told Heard that if he exercised his constitutional right to a jury trial and was convicted, Heard would be sentenced to “at least double, perhaps triple or more time. * * * And this Court, given your record, will run the record consecutively.”

Essentially, respondent threatened to punish Heard for exercising his right to a trial by promising to impose a prison sentence of at least 28 years—and possibly in excess of 42 years—if Heard was convicted after trial, as opposed to 14 years if he pled guilty.

While considering the judge's 14 year "offer"

At one point, respondent stated, “I don’t know what happened, they may have arrested  the wrong six-foot-five-inch guy, maybe the victim was confused. Who knows? Maybe the dog ate your homework, right? Anything is possible in today’s world.”

Respondent then told Heard and his family a story about two “knuckleheads” who took their case to trial after they rejected a similar plea deal that respondent offered to them.

Respondent said that the two “knuckleheads” were found guilty and “both got sentenced to 78 years [in prison].”

On appeal

Heard’s plea was vacated and the judgment was reversed and remanded, with instructions that the administrative judge assign the case to a different trial judge.

Heard was acquitted of all charges.

In a bench trial

While respondent’s questions for [witness]] J.C. only focused on the childhood fight and the April 2016 incident, respondent took the position of a biased advocate when questioning [defendant] W.S., interrogating him on matters, not only inadmissible, but wholly immaterial to the case.

Allegedly improper questioning is set out at length

During the trial, respondent also improperly questioned W.S. about his relationship with his parents, prior DUI convictions, and a felony charge for sexual imposition.

The conviction was reversed

In 2019, W.S. appealed his conviction in the Eighth District Court of Appeals, alleging that the trial court abused its discretion by considering inadmissible and prejudicial evidence and questioning him in a confrontational manner. State v. W.S., Eighth District Court of Appeals, Case No. CA-17-10XXXX. W.S. also alleged that his felonious assault conviction was based on insufficient evidence.

The Eighth District Court of Appeals agreed...

He is charged with improper comments in two other matters including

Hey, Michael, I don’t want to be a pawn in your game with your soon to be ex-wife. I don’t want to traumatize the children. I don’t want to be around your former wife. That’s not cool. We know that. Anybody knows that. Instead of getting in the car, go over there, roll your eyes, flip your hair, tell her to fuck herself, tell her you’re going to fuck her up.

And a letter on judicial stationary to a defendant acquitted in a jury trial he presided at

Viola attached respondent’s letter to the writ and wrote, “The federal judiciary has denied Petitioner’s post-conviction requests for relief, and no evidentiary hearing has ever been held, prompting Judge Daniel Gaul, who presided over the second trial, to take the extraordinary step of stating in writing that the Petitioner is innocent and wrongfully incarcerated, Exhibit A.”

Cleveland.com had a report on the fight matter

The victim, James Caraballo, got the better of Skerkavich during a junior-high fight a decade earlier, records show. Skerkavich threw a snowball at Caraballo when he recognized him that night, and the two fought. Caraballo went to the hospital the next day for treatment. Skerkavich was not hurt.

Skerkavich waived his right to have a jury hear his case and instead chose to allow Gaul to render a verdict. Caraballo testified during the two-day trial that Skerkavich was the aggressor and both punched and kicked him during the fight.
 
Skerkavich took the stand and testified that Caraballo charged him first and was the instigator. Gaul called Skerkavich back to the stand after his attorney and an assistant Cuyahoga County prosecutor finished questioning him.
 
Gaul did not ask any other witnesses who testified more than 15 questions, but peppered Skerkavich with 85 questions, the appeals court wrote. The prosecutor and Skerkavich’s defense attorney only asked Skerkavich a combined 92 questions, the court noted.

The judge was the subject of a Serial podcast entitled You've Got Some Gauls. "(Mike Frisch)

December 28, 2021 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)