Tuesday, November 12, 2019

Judges Gone Wild; Altercation Started With Middle Finger Salute

The Indiana Supreme Court suspended three judges for a much-reported incident in a White Castle parking lot

We find the Respondents—the Honorable Andrew Adams, Judge of the Clark Circuit Court , the Honorable Bradley B. Jacobs, Judge of the Clark Circuit Court , and the Honorable Sabrina R. Bell, Judge of the Crawford Circuit Court—engaged in judicial misconduct by appearing in public in an intoxicated state and behaving in an injudicious manner and by becoming involved in a verbal altercation. We also find that Judge Adams and Judge Jacobs engaged in judicial misconduct by becoming involved in a physical altercation for which Judge Adams was criminally charged and convicted. Respondents’ actions were not merely embarrassing on a personal level; they discredited the entire Indiana judiciary.

This matter is before us on the Indiana Commission on Judicial Qualifications’ (“Commission’s”) “Notice[s] of the Institution of Formal Proceedings and Statement of Charges” against Respondents. After charges were filed, each Respondent separately tendered, jointly with the Commission, a “Statement of Circumstances and Conditional Agreement for Discipline” stipulating to certain facts.

Although these proceedings were filed under different case numbers, we issue a single opinion for all three cases because the misconduct charges stem from the same incident.

The judges were attending the Spring Judicial College and the night before

At around 12:30 a.m. on May 1, Respondents and Clark Circuit Court Magistrate William Dawkins (“Magistrate Dawkins”) met at a local bar, where they continued to drink alcohol. At around 3:00 a.m., the group walked to a strip club and tried to enter, but found that it was closed.

The group then walked to a nearby White Castle. While Magistrate Dawkins went inside, Respondents stood outside the restaurant. At around 3:17 a.m., Alfredo Vazquez and Brandon Kaiser drove past the group and shouted something out the window. Judge Bell extended her middle finger to Vazquez and Kaiser, who pulled into the White Castle parking lot and exited the vehicle. Judge Bell, who was intoxicated, has no memory of the incident but concedes that the security camera video shows her making this gesture.

A heated verbal altercation ensued, with all participants yelling, using profanity, and making dismissive, mocking, or insolent gestures toward the other group. At no time did Respondents move to another location in the parking lot to avoid a confrontation or de-escalate the conflict.

After a verbal exchange between Judge Bell and Vazquez, a physical confrontation ensued. At one point, Judge Jacobs had Kaiser contained on the ground. With his fist raised back, Judge Jacobs said, “Okay, okay, we’re done, we’re done,” or “This is over. Tell me this is over,” or words to that effect. At another point during the confrontation, Judge Adams kicked Kaiser in the back. The confrontation ended when Kaiser pulled out a gun, shot Judge Adams once, and shot Judge Jacobs twice.

Judge Adams and Judge Jacobs were transported to local hospitals for treatment of their serious injuries. Judge Adams, who sustained a single gunshot wound to the abdomen, had two emergency surgeries, including a colon resectioning. Judge Jacobs, who sustained two gunshot wounds to the chest, also had two emergency surgeries and was hospitalized for 14 days.

The court

While in town to attend a statewide educational conference for judicial officers, 10 hours before the program convened, Respondents walked the streets of downtown Indianapolis in a heavily intoxicated state. When Judge Bell extended her middle finger to a passing vehicle, neither Judge Adams nor Judge Jacobs discouraged the provocation or removed themselves from the situation. Instead, all three Respondents joined in a profane verbal altercation that quickly turned into physical violence and ended in gunfire, and in doing so, gravely undermined public trust in the dignity and decency of Indiana’s judiciary.

Sanctions

The Court orders that Andrew Adams, who already is under an interim suspension, shall be suspended without pay from the office of Judge of the Clark Circuit Court 1 for sixty (60) days, effective immediately...

The Court orders that Bradley B. Jacobs shall be suspended from the office of Judge of the Clark Circuit Court 2 without pay for thirty (30) days commencing at 12:01 a.m. on Friday, November 22, 2019...

The Court orders that Sabrina R. Bell shall be suspended from the office of Judge of the Crawford Circuit Court without pay for thirty (30) days commencing at 12:01 a.m. on Friday, November 22, 2019. 

(Mike Frisch)

November 12, 2019 in Judicial Ethics and the Courts | Permalink | Comments (0)

"That's Your License Counselor"

The New York Commission on Judicial Conduct has admonished a judge

Respondent, Genine D. Edwards, a Justice of the Supreme Court, Kings County, was served with a Formal Written Complaint dated May 21, 2019, containing one charge. The Formal Written Complaint alleged that on March 9, 2017, while presiding over a trial in Carolyn Thomas v. Quest Livery Services, LLC et al., respondent threatened to file a professional grievance against an attorney unless his client immediately offered to settle the case for $25,000.

In closing argument in the underlying case

On March 8, 2017, the attorney for defendants Urbina and Bahiro, Michael L. Tawil, Esq., delivered a summation in which he made the following statement:

On the other hand, you have Mr. Batista. He's on the phone talking to his female girlfriend or someone. He's selling cell phones to his passenger, he's listening to the radio, he said they're having a good time in the car. They're having a good time and he's paying attention to the passenger, to his girlfriend, probably to the radio. For all we know, he could be frying up some platanos in the front seat. We don't know. But he's not paying attention to the road, what's going on around him, okay.

The next day, March 9, 2017, before the jury was charged, respondent conducted an off-the-record conference in chambers with both Mr. Tawil and his client's insurance adjuster for the purpose of settling the case and addressing Mr. Tawil's summation remark.

During the off-the-record conference, respondent said that Mr. Tawil's statement during summation about platanos was "racist" and that she and her court staff were offended by his remark. Respondent then told Mr. Tawil, "What's going to happen now is your client is going to pay $25,000 to settle this case right now or I am going to report you to the Appellate Division Second Department. That's your license counselor.''

The insurance adjuster called his supervisor and then advised respondent that his client refused to settle the case for $25,000.

The jury returned a $2000,000 verdict that was reduced to $65,000. The judge did not file a bar complaint

Respondent acknowledges that it was improper to state that she would file a professional grievance against Mr. Tawil unless his client settled the case for a specific sum, even if she believed that Mr. Tawil committed an ethical violation. She recognizes that her words may have created the appearance that she was attempting to use Mr. Tawil's alleged misconduct as leverage to induce his client to settle the case.

(Mike Frisch)

November 12, 2019 in Judicial Ethics and the Courts | Permalink | Comments (0)

Monday, October 28, 2019

Never The Mark Twain Shall Meet

From the Florida Judicial Ethics Advisory Committee

Opinion Number: 2019-30
Date of Issue: October 16, 2019

ISSUE

May a judge publish a work of fiction using a pen name?

ANSWER: Yes, as long as the judge’s writings do not cast doubt upon the judge’s impartiality, interfere with the performance of professional duties, or demean the judge’s office.

FACTS

The inquiring judge has written a historical novel and inquires whether the Code of Judicial Conduct allows the book to be published under a pen name.

 

DISCUSSION

The judge’s inquiry is similar to that in Fla. JEAC Op. 98-01, wherein the judge had written what was described as a “crime novel.” The 1998 opinion provides a history of prior inquiries regarding the authorship of books, but none of those inquiries involved works of fiction. This Committee perceived no difference, but cautioned the judge that the novel should not “cast reasonable doubt on the judge’s capacity to act impartially as a judge, demean the judicial office, or interfere with the proper performance of judicial duties.” See also Fla. JEAC Op. 10-12, wherein the judge wanted to publish a children’s book. The judge posing the current inquiry acknowledges having read JEAC Op. 98-01.

The Committee sees no ethical dilemma in the use of a pen name. If the practice was good enough for Mark Twain, Stendhal, Trevanian, and others, there is no reason to suspect that the inquiring judge cannot follow suit.

We are mindful of the cautionary language in Op. 98-01 regarding the potential for even fictional writings to demean the author’s judicial office. Fla. JEAC Op. 98-01 did not give explicit guidance as to what sort of fiction might cross this line. As one committee member observed, “The only way to make that kind of assessment is to read the whole book.” We conclude that the fact this judge proposes to write historical fiction - and not, presumably, a thinly-disguised roman à clef - should sufficiently insulate the book from any violations of the Canons, particularly since the judge’s name will not even appear as the author.

(Mike Frisch)

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

Thursday, October 17, 2019

The Law Of Foul Language

A village court justice has been removed from office by the New York Commission on Judicial Conduct for email statements to a client in his (permitted) part-time law practice

Between October 24, 2014, and February 22, 2015, respondent sent nine emails in connection with the Family Court matter to the Colemans at their shared email account in which he:

  • Referred to their daughter several times as a "bitch";
  • Stated that their daughter's "lawyer is a cunt on wheels (sorry for the profanity ... and don't quote me), so be prepared" and, in another email, referred to the lawyer as "eyelashes";
  • After cautioning the Colemans not to contact their grandchild's school, stated, "You should know by now that people who work in schools are assholes" 1;
  • Stated, with respect to a scheduled court appearance, "We will appear entirely calm and reasonable .. .let your daughter act like the asshole she is";
  • Stated in the subject line of an email, in reference to the daughter and her former husband, "THE TWO SCUMBAGS WERE SERVED"; and
  • Stated in reference to the Family Court referee, around the time respondent advised the Colemans to withdraw their petition, "[Y]ou may have noticed that the 'judge' is an asshole. An 'asshole' can issue a warrant for your arrest."

In February 2015, the Colemans withdrew their petition for visitation and the matter was discontinued.

Sanction

Based on the totality of the record before us, including the nature and frequency of respondent's comments, his repeated use of such language to legal clients, and his earlier caution for making sarcastic and disrespectful comments in court, we conclude that respondent lacks fitness to serve as a judge and, accordingly, that his removal from office is warranted.

Over a period of several months, respondent's email communications with his clients, his former house cleaner and her husband whom he was representing in a grandparent visitation matter, contained crude and derogatory epithets referring to various individuals involved in their case. In the context of informing and advising them about the case, he referred to the clients' daughter and her former husband, his clients' adversaries in the matter, as "the two scumbags," and referred to the daughter as an "asshole" and a "bitch" ( or "that bitch") on multiple occasions. Cautioning his clients not to contact their grandchild's school, he used the same profanity referring to the school's staff ("You should know by now that people who work in schools are assholes").

Referring to the daughter's lawyer, respondent's language was equally vulgar and sexist ("a cunt on wheels" and "eyelashes"). His profane insults extended even to the court referee ("you may have noticed that the 'judge' is an asshole. An 'asshole' can issue a warrant for your arrest").

The impropriety of such language requires little discussion. Criticism of individuals involved in his clients' case is not the issue here, nor is the use of profanity in communicating with his clients. However, as the Court of Appeals has held, using crude language that reflects bias or otherwise diminishes respect for our system of justice, even off the bench, is inconsistent with a judge's ethical obligations.

(Mike Frisch)

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

Tuesday, October 15, 2019

Oh Brother

The New York Commission on Judicial Conduct has censured a judge who presided over more than 2,500 civil matters involving an organization that his brother was associated with

from November 2005 through December 2016, respondent presided as the judge of record for more than 2,500 civil matters involving Cornerstone Community Federal Credit Union ("CCFCU"), notwithstanding that his brother was an officer and board member of CCFCU.

Sanction

In accepting the jointly recommended sanction of censure, we have taken into consideration that respondent was cooperative with the Commission and there was no indication that respondent gave preferential treatment to the CCFCU. Respondent acknowledged that his conduct was improper and that he should have taken steps to ensure that he did not preside over CCFCU matters at the outset of his tenure as a judge. We also note that respondent has expressed remorse for his conduct. We trust that respondent has learned from this experience and in the future will act in accordance with his obligation to abide by the Rules Governing Judicial Conduct.

(Mike Frisch)

October 15, 2019 in Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, October 10, 2019

Harassment And Other Misconduct Draw Indefinite Suspension

The Ohio Supreme Court has sanctioned a former judge as described by Dan Trevas

The Ohio Supreme Court today indefinitely suspended former Tenth District Court of Appeals Judge Timothy S. Horton from practicing law, rejecting his claims that he should receive a more lenient sanction for his misconduct.

In a unanimous decision, the Court found Horton of New Albany violated multiple rules governing the conduct of Ohio judges and the rules governing the conduct of Ohio attorneys. Writing for the Court, Chief Justice Maureen O’Connor stated that Horton’s actions “impaired the public’s faith in an impartial judiciary,” and were particularly harmful to his judicial staff.

“His actions — abusing his staff, allowing his staff to use county time and materials to work on his campaign, filing false campaign-finance reports, and apparently attempting to use his role as a judge, including his previous rulings, to win endorsements and campaign contributions — undermined the public’s faith in the judiciary,” the opinion stated

Judge Cited for Campaign and Sexual Misconduct
Horton served as a Franklin County Common Pleas Court judge from 2006 until his 2014 election to the Tenth District. The Office of the Disciplinary Counsel filed a complaint against Horton in January 2018, and Horton resigned from the bench in February 2019.

The disciplinary counsel’s charges of rule violations stemmed from three separate circumstances, which included Horton’s guilty plea to misdemeanor charges for failing to file accurate campaign finance statements, misusing county resources and staff for campaign work, and sexually harassing his legal intern and his secretary.

The panel conducted a five-day hearing where 16 witnesses testified. The panel concluded Horton violated the Code of Judicial Conduct and the Rules of Professional Conduct, and recommended he be suspended for two years with one year stayed. The full board adopted the panel’s findings, but recommended to the Supreme Court that Horton be indefinitely suspended and required to meet certain conditions to return to the practice of law.

Judge Directs Sexual Misconduct Toward Staff
The disciplinary complaint charged that Horton directed inappropriate sexual comments and conduct to members of his judicial staff in 2013 and 2014. His actions violated the rules that judges cannot abuse the prestige of their office to advance their personal or economic interest, or engage in sexual harassment. The Court’s opinion noted that, in 2009, the judicial code of conduct was updated to add a specific prohibition against sexual harassment and Horton’s case appears to be the first time in Ohio that a judge was found to have violated the rule.

Horton made inappropriate comments to his secretary, Elise Wyant, who was 25 years old at the time of the incidents, and to a 23-year-old legal intern, identified as M.B. in court documents. Horton would tell members of the staff they were “sexy” during work hours and commented on the attractiveness of other employees. Staff members stated they felt uncomfortable turning down Horton’s invitations to attend after-work happy hours, and Horton admitted that his behavior at happy hours and when he was intoxicated was “rude” and “obnoxious.”

M.B. testified she consented to engage in sexual conduct with Horton after her internship ended, and that Horton encouraged his friends to grope her. She testified she felt like she had to agree to Horton’s demands because of his power over her as a judge. Wyant admitted to engaging in sexual conversations with Horton, but she worried that it would affect her job if she told him she felt uncomfortable.

Horton argued the sexual activities were consensual. The Court’s opinion stated the judicial code is concerned with the actions of judges, not with the behavior of judicial staff or whether his employees acquiesced to the culture he created or consented to his advances.

“Horton engaged in sexual harassment in the performance of his judicial duties, abused the prestige of his office for his own personal interests, and acted in a manner that brings disrepute to the judiciary,” the opinion stated.

The Court agreed with the panel’s conclusion that Horton’s conduct was “predatory.”

Campaign Misconduct Violated Rules
Horton pleaded guilty to three counts of failing to file complete and accurate campaign statements during his run for judge on the Tenth District. In March 2014, he learned he would be unopposed for the seat and celebrated with a private dinner at a Columbus restaurant, which cost $1,014. Horton used campaign funds to pay for the dinner, which constituted an unreasonable and excessive campaign expense. He also spent $978 on a campaign fundraising event which only one person outside of his court and campaign staff attended. And he spent $173 on cigars to be available to campaign supporters. Those two expenditures also were found to be unreasonable and excessive.

Horton also was charged with rule violations because his staff worked on his campaign during work hours and with county resources. Horton argued that he told the staff they could “volunteer” on his campaign, and that it would be appreciated. Horton testified that he understood campaign work could not be conducted on county time and with county equipment, but that he expected his staff to be responsible for following the rules and accurately accounting for their time.

However, the panel found “overwhelming evidence” that Horton assigned Wyant campaign work during county work hours, even if he did not specifically direct her to do it while at work, and that she missed several days of work to attend campaign-related golf outings. Wyant also accepted two campaign contributions from attorneys in the judge’s chambers.

The Court rejected Horton’s arguments that he did not violate the rules because his employees chose not to follow rules regarding time-keeping and equipment use.

“If a sitting judge chooses to allow public employees to volunteer to work on his or her campaign, it is incumbent upon the judge to uphold the integrity of the judiciary by imposing clear rules prohibiting campaign work on county time or using county resources and strictly enforcing those rules,” the opinion stated.

Sanction Reflects Misconduct
The opinion noted the court takes seriously its responsibility in setting precedent concerning the sanction for a judge who violates the rules against sexual harassment. The Court stated that an indefinite suspension may not be appropriate in all cases of sexual misconduct or harassment, but it is the appropriate sanction in Horton’s case given the number of other violations, the harm to individual victims, and the harm to the public trust.

“We will protect the public by sending a strong message to members of the judiciary that abusing the trust of public employees and the public at large will result in significant consequences,” the opinion stated.

The Court conditioned Horton’s reinstatement to the practice of law on his continued participation in Alcoholics Anonymous. He also must submit to an Ohio Lawyers’ Assistance Program evaluation and comply with the recommendations arising from the evaluation; avoid contact with the former employees or interns who testified in the disciplinary proceedings; and pay for the costs of the proceedings.

2018-1746. Disciplinary Counsel v. Horton, Slip Opinion No. 2019-Ohio-4139.

Video camera icon View oral argument video of this case.

(Mike Frisch)

 

October 10, 2019 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, September 18, 2019

Judge Canned Over Facebook Share

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

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

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

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

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

The stipulation is linked here.

From his letter to the Town Supervisor

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

(Mike Frisch)

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

Friday, August 23, 2019

No Magistrate Limbaugh In South Carolina

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


OPINION NO. 10 - 2019

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

FACTS

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

CONCLUSION

A magistrate judge should not host a radio talk show.

OPINION

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

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

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

(Mike Frisch)

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

Tuesday, August 13, 2019

Resigned

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

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

(Mike Frisch)

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

Lest Ye Be Judged

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Coverage from Cincinnati.com. (Mike Frisch)

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

Tuesday, August 6, 2019

The Order Of The Silver Crescent

The South Carolina Advisory Committee on Standards of Judicial Conduct  opines

FACTS

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

CONCLUSION

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

(Mike Frisch)

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

Sunday, August 4, 2019

Injustice Of The Peace

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

The Advocate reported

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

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

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

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

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

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

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

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

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

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

(Mike Frisch)

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

Sunday, July 28, 2019

Flirtatious Magistrate Charged

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

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

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

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

He did not respond to later texts.

He was fired.

Charges linked here. (Mike Frisch)

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

Thursday, July 18, 2019

Helping Out Draws Suspension Of Judge

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

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

The judge stipulated to two counts of misconduct

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

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

He violated several Canons of Judicial Conduct

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

And

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

Sanction

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

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

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

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

(Mike Frisch)

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

Saturday, June 29, 2019

Court Of Last Resort

An opinion of the Florida Judicial Ethics Advisory Committee

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

ISSUES

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

ANSWER: Yes.

FACTS

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

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

Reasoning

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

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

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

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

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

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

(Mike Frisch)

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

Friday, June 28, 2019

"A Pattern Of Discourtesy And Uncontrollable Incivility"

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

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

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

The judge sought to suppress evidence seized in the courthouse

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

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

No basis to dismiss

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

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

Before the court on the merits

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

A misconduct finding was warranted as to the warrants

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

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

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

Concluding

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

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

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

More than a personality clash

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

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

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

Oral argument video linked here. 

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

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

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

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

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

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

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

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

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

(Mike Frisch)

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

Thursday, June 27, 2019

What 25 Years On The Bench Gets You

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

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

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

The judge explained

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

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

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

It may get you an appearance of impropriety

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

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

The repair

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

The unidentified judge has retired. (Mike Frisch)

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

Wednesday, June 26, 2019

Prohibition Yes Mandamus No

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

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

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

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

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

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

(Mike Frisch)

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

Monday, June 17, 2019

No Stay Of Judicial Misconduct Proceedings For Indicted Judge

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

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

Justification for moving forward

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

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

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

Holding

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

Justice Keller dissented

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

As did Justice Lambert

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

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

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

WKYT reported on the criminal charges.

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

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

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

 (Mike Frisch)

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

Monday, June 10, 2019

"The Whole System, Quite Frankly, Sucks"

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

From the stipulation

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

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

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

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

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

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

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

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

(Mike Frisch)

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