Legal Profession Blog

Judge Ordered Payment Of Restitution To Himself

The Tennessee Board of Judicial Conduct has reprimanded a General Sessions Court judge.

The judge had accepted a guilty plea in a case

in which the defendant had struck and damaged [his] personal vehicle and was charged with driving without a license. He was not charged with any other offense, including hitting [his] vehicle or causing property damage. As a condition of accepting the defendant's guilty plea, [he] ordered [the defendant]  to pay restitution to [himself] in the amount of $590.19. The defendant was pro se, did not speak English, and an interpreter translated the proceedings.

The letter of reprimand notes that no lawyers were involved in the proceeding and that restitution for the judge's damaged truck as a condition of the plea was "solely" the judge's idea.

The plea was later set aside by the judge; a different judge dismissed the case.

In response to the complaint, the judge had called the restitution "miniscule" and contended that the ethical violation was "technical, not substantive."

The board called the circumstances "troubling in several respects" and noted that the judge had a prior reprimand.

The prior reprimand involved a post on a school's Instagram page depicting himself on the bench in judicial robes declaring his intent to "really crack down on truancy problems" in his county. (Mike Frisch)

Stuff Happens

A complaint of judicial misconduct has been dismissed as "unfounded" by the Chief Judge of the United States Court of Appeals for the Ninth Circuit

As to the allegation regarding whether the district judge “has a custom and practice of not promptly adjudicating matters,” a review of the district judge’s record of pending matters reveals that there is no “habitual delay in a significant number of unrelated cases.” Although federal courts strive to resolve pending matters expeditiously,delays do occur; thus, any allegation of habitual delay must be considered in the context of the workload of the subject judge and the district as a whole. After a review of the district judge’s record of pending matters, the workload of the district judge, as well as the workload of judges in the district, this allegation is dismissed as unfounded.

(Mike Frisch)

The Musings Of Sal Tortorella

A three-month suspension of a Superior Court judge has been imposed on consent  by the New Jersey Supreme Court.

From the complaint filed by the Judicial Ethics Advisory Committee

At all times relevant to this matter, Respondent served as a Judge of the Superior Court of New Jersey, assigned to the Criminal Division in the Bergen Vicinage, a position he continues to hold.

Respondent, using the alias "Sal Tortorella," created an account on TikTok, a social media application that allows users to create short videos set to music or other audio and share those videos on the platform, on which Respondent posted 40 videos between April 11, 2021 and March 4, 2023.

Videos

In 11 of the videos Respondent posted to TikTok, either the content - e.g., including references to violence, sex, and misogyny - location - i.e., in chambers, in the courthouse, and in a bed - or Respondent's physical appearance - e.g., wearing his judicial robes and/or partially dressed while lying in bed - were inappropriate and brought disrepute to the Judiciary. For example:

a. Respondent recorded several TikTok videos in his chambers, including songs which contained profanity, graphic sexual references to female and male body parts, and/or racist terms.

i. In one such video recorded in chambers, Respondent, wearing a T-shirt with his face close to the camera, lip-syncs the following lyrics from Jump by Rihanna: "If you want it let's do it. Ride it, my pony. My saddle is waitin', come and jump on it. If you want it, let's do it."
ii. In a second video, Respondent, while in chambers with law books visible behind him and wearing a suit and tie, lip-syncs the following: "All my life, I've been waiting for somebody to whoop my ass. I mean business! You think you can run up on me and whip my monkey ass? Come on. Come on!"
iii. In a third video, Respondent, while in his chambers wearing a suit and holding cash, pretends to light a match while lip-syncing the following lyrics from Sure Thing by Miguel:

If you be the cash, I'll be the rubber band. You be the match, I will be a fuse, boom. Painter, baby, you could be the muse. I'm the reporter, baby, you could be the news. 'Cause you're the cigarette, and I'm the smoker. We raise a bet, 'cause you're the joker.

b. Respondent recorded a TikTok video of himself wearing a "Beavis and Butt-Head" T-shirt while walking through the courthouse with Get Down by Nas playing in the background. The song contains explicit lyrics concerning a criminal case and a courtroom shooting as well as derogatory and discriminatory terms, drug and gang references, and the killing of a doctor in a hospital who treated another gang member.

c. Respondent posted two more videos that contained profanity and/or graphic sexual references.

i. In one video, while seated in a car, Respondent, wearing a "Freedom of Speech" T-shirt, lip-syncs the following: "Go ahead baby. You hittin' them corners too god damn fast. You gotta slow this motha****a down. You understand? I almost spilled my [Cognac] on this 200-dollar suit."
ii. In another video, Respondent smiles at the camera with the following screen text visible: "When an ex-girlfriend calls you "Santa" because of your new white beard." The song playing in the background, Touch It by Busta Rhymes, contains graphic lyrics. The following lyrics are audible during the video: "For the record,just a second, I'm freakin' it out. While she tryin' to touch, see, I was peepin' it out. She turned around and was tryin' to put my d**k in her mouth. I let her."

By his conduct in posting these and similar videos to TikTok, Respondent exhibited poor judgment and demonstrated disrespect for the Judiciary and an inability to conform to the high standards of conduct expected of judges.

Answer linked here. (Mike Frisch)

Over The White Noise

An Investigative Panel of the Florida Judicial Qualifications Commision has filed charges against a judge

While presiding over cases, trials, hearings, and other proceedings, you have behaved intemperately, including shouting at people appearing before you, and otherwise lacking the patience, dignity, and courtesy required by the Code of Judicial Conduct. It is also alleged that your conduct in certain instances evinced bias for or against parties or attorneys appearing before you. Examples of this misconduct include:

a. While presiding over the case of Randy Casey v. Hernando Lancheros, et al. (2017-CA-0586), among other instances of inappropriate comments and behavior, you shouted at Plaintiff's attorney, and later accused him of “provoking” your “angry face” Some of these inappropriate exchanges occurred in the presence of the jury. Although the white-noise device may have prevented those in the courtroom from hearing exactly what you said at sidebar conferences, observers were able to hear your raised voice and see that your facial expression and overall demeanor evinced a bias against one party or their attorney.

b. In the case of Alisha Oliver v. Holly Swarthout (Orange County Case No. 2021-CA-2065), you behaved intemperately towards people appearing before you. It is also alleged that your raised voice could be heard again over the white-noise machine, and that your facial expression and overall demeanor evinced a bias against one party or their attorney

c. While presiding over the matter of Megan Regan v. Hernando Lancheros, et al.(Orange County Case No. 2017-CA-8661) you behaved intemperately towards people appearing before you. You also threatened the plaintiff’s attorney with direct criminal contempt.

d. While presiding over the case of Jain v. Baker (Orange County Case No. 2016-CA-7260) in September 2023 you consistently and repeatedly treated the Plaintiff's attorney in a manner that was not patient, dignified or courteous.

A motion to disqualify

In the matter of Holt v. Nelson, Case No. 6D24-966 (2020-CA-005088-O 9" Circuit) a party filed a Motion to Disqualify you, alleging bias against the party’s law firm, “signaling” by you to the opposing party, and intemperate behavior.

Alleged

the appellate court reversed your ruling on the Motion to Disqualify, stating that it was not moot, but furthermore stated that your commentary passing on the facts alleged mandated disqualification. Passing on the facts alleged in a Motion to Disqualify is prohibited by Fla. Rule of Gen. Prac. & Jud. Admin 2.330(h)

Prior caution

In JQC Case No. 2019-648 the Commission cautioned you against allowing yourself to be provoked into intemperate behavior by what you perceive as unprofessional conduct by attorneys or parties. In that case you were recorded shouting down an attorney who appeared before you in the matter of Willey v. Stillman, (2010-DR-8250). This matter is hereby reopened and realleged as part of a pattern of misconduct.

Click Orlando.com reported on the charges and noted

Ashton was first elected as a circuit judge in 2018. He was assigned to the domestic violence division, then the civil court division from 2021 until April of this year, when he transferred back to the domestic violence division.

Before that, Ashton was a state attorney and the prosecutor who handled the Casey Anthony trial.

Ashton is currently running for reelection in a runoff race against challenger Alicia Peyton in November.

ABC News noted in August 2015

Florida state attorney Jeff Ashton, known for his role as a prosecutor in the Casey Anthony trial, admitted today to "indulging a curiosity" by joining the Ashley Madison cheating website.

Ashton, who is married, apologized to his family and the public at a press conference this afternoon.

"Two years ago, I was curious about the Ashley Madison website and I used my personal credit card to sign up for the site," he said.

Ashton said his involvement with Ashley Madison, a website for married people seeking affairs, was limited to online. He said he indulged a curiosity by joining the site, but claimed he never met anyone in person and no laws were broken.

Ashton said he was "so curious how this could exist."

(Mike Frisch)

"Not Demonstrably Egregious And Hostile"

A complaint alleging judicial misconduct has been dismissed by the Chief Judge of the United States Court of Appeals for the Ninth Circuit

Complainant alleges that the district judge made “abusive and unbecoming” statements during a hearing and improperly suggested that he could “disbar” an attorney. Pursuant to Judicial-Conduct Rule 11(b), a limited inquiry was conducted. As part of the inquiry, a written response from the district judge was requested and considered, and other available information was reviewed.

The district judge suggested that he would take action to ensure the attorney no longer practiced law. Although judges may not inappropriately wield their influence to have an attorney disbarred,see In re Charges of Judicial Misconduct, 465 F.3d 532, 546 (2d Cir. Jud. Council 2006), they “should take appropriate action upon receipt of reliable information… that a lawyer violated applicable rules of professional conduct.” Code of Conduct for United States Judges Canon 3(B)(6). This attorney’s conduct warranted referral to the relevant disciplinary body. Indeed, the state bar subsequently disciplined the attorney for his conduct in this case. In this context, the judge’s comments did not constitute misconduct.

Although some of the district judge’s comments were not expressed in a professional manner, a review of the record reveals that the district judge’s treatment of the attorney was not demonstrably egregious and hostile, as required for a finding of misconduct under the Judicial Conduct and Disability Act. One brief exchange, following a long line of unprofessional and shocking conduct by the attorney, did not interfere with the effective and expeditious administration of the business of the courts. Accordingly, this allegation is dismissed. See Judicial-Conduct Rule 11(c (1)(A), (D).

That said, the district judge is reminded that a “judge should be patient, dignified, respectful, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity.” Code of Conduct for United States Judges Canon 3(A)(3).

(Mike Frisch)

"Are You A Psycho? That's A Yes Or No"

The Nevada Supreme Court has administratively closed a judicial misconduct matter

This matter was docketed in this court on July 18, 2024, with the filing of a Certified Copy of Stipulation and Order of Consent to Public Censure. See Procedural Rules of the Nevada Commission on Judicial Discipline, Rule 29 (upon entry of an order of discipline pursuant to a stipulation and consent, the commission must file a certified copy of the order with the clerk of the supreme court). Because this is a consent order, the clerk of this court is directed to administratively close this matter.

The Las Vegas Review-Journal had this story in July

A Las Vegas judge has agreed to accept a public censure after the state’s Commission on Judicial Discipline found that she shouted, used profanity and took a hostile tone during hearings.

Family Court Judge Mary Perry admitted to violating nine parts of the Nevada Code of Judicial Conduct, including requirements that she comply with the law, perform her duties fairly and impartially and act in a patient and dignified way.

“What both of these hearings have in common is the Respondent’s needlessly disrespectful tone of voice, obvious changes in her mood, the use of profanity, personally demeaning comments about the litigants, and generally, her overall demeanor and lack of professional decorum toward all litigants appearing at those hearings,” the commission said of the two divorce cases it investigated in a stipulation and order published on its website Tuesday.

Besides the censure, Perry must complete remedial training with the National Judicial College on judicial ethics and judging.

And the commission said she faces a 30-day unpaid suspension, a punishment suspended for a year while she is on probation. She must follow the terms of the stipulation and order and avoid violations of the conduct code during that time.

Through a court spokeswoman, Perry released a statement about the censure.

“I have gained new insight from my experience with the commission,” the statement read. “I intend to use this experience to enhance my skills to preside over challenging cases and better serve families in our community.”

Las Vegas attorney Kenneth Friedman, who represented Perry, said Perry will not be suspended if she complies with the commission’s conditions.

In one divorce and custody case, Perry asked a litigant: “Are you a psycho? That’s a yes or no?” during a discussion of the litigants’ mental and physical health.

“Your children deserve a hell of a lot better than both of you,” she said at another point. “I’m going to take her home with me! And neither one of you will see her.”

In another divorce case, the parties settled, but Perry still made comments about how she would have ruled against one of the litigants had the case gone to trial based on information from a prior divorce proceeding. She said she did so to establish a record for bankruptcy court, but could not “articulate any legal basis for taking the actions she did,” according to the commission.

During a later hearing in that case, Perry “spoke in a hostile tone,” deprived one of the parties of “her right to be heard” and awarded attorney fees against her, the commission said.

The litigants in the cases at issue are not named in the posted documents.

The commission said Perry agreed that these cases and other complaints filed against her “evidence a concerning and ongoing pattern of judicial misconduct for which corrective action must be taken.”

Perry provided evidence that her behavior might have been caused or influenced by medication, according to the commission. The commission considered that a mitigating factor.

Friedman said he could not comment on what medication Perry takes or her underlying health issues.

(Mike Frisch)

Denied But Resigned

A town court justice's resignation while under investigation has been accepted by the New York Commission on Judicial Conduct per this press release

In March 2024, the Commission apprised Judge Byrne that it was investigating four complaints that, among other things, alleged that she:
• Dismissed traffic tickets issued to some of her relatives;
• Retaliated against a former court clerk for cooperating with the Commission’s investigation; and
• Inappropriately criticized the local dog control officer regarding a pending case, and intervened in a matter involving the officer’s spouse despite being disqualified from the matter.

Judge Byrne, who denied the allegations, resigned from office on July 29, 2024, and 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.

The judge

Judge Byrne, who is an attorney, had been a Justice of the New Lebanon Town Court since 2010. Her current term would have expired on December 31, 2025.

A Propane Cannon

The New York Commission on Judicial Conduct accepted the resignation of a town court justice for conduct described in a press release

Donald R. Spaccio, a Justice of the Montour Falls Village Court and the Montour Town Court, Schuyler County, resigned while under investigation by the New York State Commission on Judicial Conduct.

In April 2024, the Commission apprised Judge Spaccio that it was investigating complaints that he:
• Impermissibly attended the political rally in Washington, DC, on January 6, 2021;
• Shouted at police officers and invoked his judicial office when they asked him to remove a propane cannon from the roof of his building; and
• Yelled profanities at the Montour Code Enforcement Officer during the course of a dispute.

Judge Spaccio resigned from office by letter dated September 9, 2024, and 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.

Respondent is not an attorney. (Mike Frisch)

A Kiss Is Just A Kiss

A Cleveland judge has been charged with Code of Judicial Conduct violations by Ohio Disciplinary Counsel.

One count involves allegations that the judge was biased based on "inappropriate and undisclosed"  personal relationships with three individuals, most prominently with Mark Dottere.

In response to a grievance filed by a litigant, the judge admitted a close personal friendship with Dottere since they were children; she denied a romantic relationship and dismissed a kiss between them outside Delmonico's Steakhouse by stating that they both

are Italian and have a habit of kissing all family and close friends.

She allegedly told two other judges that she was in love with Dottere and had consulted counsel about a possible divorce.

The litigant [Jardine] who filed a judicial complaint was involved in a divorce; he and his wife "owned and operated several funeral homes and cremation centers in Northeast Ohio." 

The judge allegedly appointed Dottere (a non-attorney) as receiver and approved the payment of substantial fees to him as well as approving his counsel fees.

"Suspecting an improper relationship between respondent and Dottere,"  Jardine hired a private investigator to surveil them.

The surveillance bore fruit and led to her disqualification.

There are allegations in two other domestic cases and alleged false statements during the disciplinary investigation.

The Marshall Project reported on the controversy that underpins the allegations

Cuyahoga County Domestic Relations Judge Leslie Ann Celebrezze violated court rules when she steered a contentious but lucrative divorce case involving a longtime friend to her own docket, the Ohio Supreme Court has ruled.

The ruling bars Celebrezze from overseeing the case, in which she has faced numerous bias allegations from attorneys for Jason Jardine, a Strongsville businessman who is getting divorced. The allegations raised questions about the friendship between Celebrezze and receiver Mark Dottore.

Dottore is the judge’s lifelong family friend, who has been paid more than $500,000 in fees since 2017 for working as a court-appointed receiver in divorce cases in Celebrezze’s courtroom.

Ohio Supreme Court Chief Justice Sharon Kennedy’s decision permanently removes Celebrezze from the divorce case of Jardine. It does not yet affect Dottore’s assignment as receiver.

Kennedy didn’t consider Jardine’s bias allegations. Instead, the judge found the point moot because Celebrezze violated court policy when she unilaterally moved Jardine’s case to her docket after another judge recused herself.

Kennedy disqualified Celebrezze to avoid an appearance of impropriety, the ruling states.

“Judge Celebrezze was not randomly assigned to Jardine’s case. The failure to randomly assign the case was in violation of the local rules,” Kennedy wrote in her ruling released Friday.

“Therefore, to allay any concerns about the integrity of the underlying case, and to ensure to the parties and the public the unquestioned neutrality of an impartial judge, Judge Celebrezze is disqualified.”

Celebrezze declined to comment. The Jardine case, according to the court’s online docket, has been reassigned to Judge Diane Palos, who joined the court in 2009.

In a written response to the allegations seeking her removal, Celebrezze said that it was her practice to reassign complex and contentious cases to herself. Kennedy balked at the claim.

“Each judge of that court is presumed competent to handle any assigned case, even complex and contentious matters,” Kennedy wrote.

“Regardless of Judge Celebrezze’ s intention, the purpose of randomly reassigning cases after one judge recuses is defeated when the administrative judge handpicks a case to keep for herself.”

Kennedy also ruled that Judge Tonya Jones violated local rules when she recused herself from Jardine’s case in August 2022 and reassigned the case to Celebrezze.

Jones stepped aside because “her former staff attorney left employment with the court and accepted employment with” Jardine’s attorney, the court previously said.

“Judge Jones was without authority to issue an order recusing from the case and reassigning the matter to Judge Celebrezze,” Kennedy wrote.

Jones also declined to comment.

Meanwhile, the controversy around Celebrezze and Dottore has widened.

Georgeanna Semary, Celebrezze’s judicial assistant since 2009, contends she was transferred out of the judge’s office in April and forced to take a $20,000 pay cut after she allowed The Marshall Project - Cleveland to review public records involving Dottore or his company, court records show.

Semary provided a reporter with copies of billing invoices from Dottore’s firm contained in the public file.

After the demotion and pay cut, Semary retained the Chandra Law Firm, which specializes in civil rights cases. In anticipation of a lawsuit, Chandra Law attorneys earlier this month requested copies of court policies, emails, pay records and other documents to better understand why Semary was demoted after The Marshall Project - Cleveland published a story about Celebrezze.

“This should also include any documents that reflect why Ms. Semary’s job was changed on or about the day that The Marshall Project published an article about Judge Celebrezze,” attorney Subodh Chandra wrote in a request to the court

“If Ms. Semary did something wrong that merited adverse actions against her, we expect to receive the records that document that.”

Earlier this summer, The Marshall Project - Cleveland reported that the volume of work Celebrezze gave to Dottore raises questions over whether the judge usurped case assignment policy to drive lucrative cases to her friend.

The Marshall Project - Cleveland noted that the court’s rules state: “When it is necessary for a case already assigned to a judge to be reassigned due to a recusal, the administrative judge will reassign a judge, at random, and record the reassignment on the docket.”

Additionally, three of the court’s other judges each told The Marshall Project - Cleveland that they have never seen the need to appoint receivers in divorce cases.

The Celebreeze family has been prominent in Cleveland and Ohio for three generations.

Her father served on the Ohio Supreme Court. Other relatives include the former Mayor of Cleveland (who also was Secretary of HEW under President Kennedy and a federal judge) and a former state Attorney General. (Mike Frisch)

Arkansas Supreme Court Refers Fellow Justice For Investigation; Controversy Possibly Related To Disciplinary Counsel Termination

The Arkansas Supreme Court dismissed a civil action with prejudice and referred a justice of the court for an investigation of possible misconduct

For the reasons set forth below, and pursuant to this court’s “general superintending control” and authority granted by Amendment 80, section 4 of the Arkansas Constitution, we vacate the circuit court’s order granting preliminary injunctive relief and dismiss the pending civil action with prejudice.

Dispute

On August 23, 2024, Marty Sullivan (“Sullivan”), Executive Director of the Administrative Office of the Courts (the “AOC”), and Charlene Fleetwood (“Fleetwood”), Acting Director of the Office of Professional Conduct (the “OPC”), received a Freedom of Information Act request (“FOIA request”) from Mark Friedman (“Friedman”), Senior Editor of Arkansas Business, for “[a]ny and all communications” sent after January 1, 2023, between (1) Lisa Ballard, the former executive director of the OPC, and Allison Hatfield; (2) Lisa Ballard and Justice Courtney Hudson; (3) Lisa Ballard and Anne Laidlaw; (4) Lisa Ballard and Linda Napper; and (5) Lisa Ballard and Doug Smith.

Ultimately, because the OPC is governed by the Supreme Court of Arkansas pursuant to Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law, this court held a confidential vote on an administrative matter pertaining to the release of emails, pursuant to Friedman’s FOIA request, from Ballard to Justice Hudson. The court’s vote did not concern any communications from Justice Hudson to any party, as those communications are subject to a FOIA exemption set forth in Arkansas Code Annotated section 25-19-105(b)(7) (Repl. 2024). As revealed in the circuit court pleadings, five justices voted to authorize Fleetwood to release the emails from Ballard to Justice Hudson.

On September 6, 2024, Justice Hudson filed suit in the Pulaski County Circuit Court seeking an injunction prohibiting the AOC, the OPC, Sullivan, and Fleetwood from producing materials in response to Friedman’s FOIA request. On September 6, 2024, the circuit court entered an ex parte temporary restraining order pursuant to Rule 65(b) of the Arkansas Rules of Civil Procedure. On September 18, 2024, Justice Hudson filed a brief in support of preliminary injunction and attached six exhibits. Among those exhibits were two confidential, unredacted, unsealed emails from Chief Justice John Dan Kemp to the six associate justices concerning the court’s confidential vote on the FOIA matter. On September 18, 2024, the circuit court held a hearing, and on September 23, 2024, the circuit court granted Justice Hudson’s request for a preliminary injunction under Rule 65.

The court

Here, an inferior court has purported to indirectly stay an administrative action of the supreme court by issuing an injunction against employees and entities under the control of this court. The pleadings and exhibits contain information on their face that should have put the circuit court on notice that this matter involved an internal administrative issue over which the circuit court has no jurisdiction. To allow a circuit court to stay enforcement of the supreme court’s decisions would usurp the supreme court’s authority guaranteed by the Arkansas Constitution. See, e.g., Steinbuch, 2024 Ark. 101, at 6, 689 S.W.3d at 60. It would also allow any dissenting justice to halt the administration of the supreme court by seeking additional review whenever he or she disagrees with an internal court decision. This specific action undermines the confidence in the judiciary and subverts the efficient and effective administration of justice. In this unique set of circumstances, the circuit court’s action requires us to assert our extraordinary power of superintending control, pursuant to Amendment 80, section 4 of the Arkansas Constitution.

Therefore, we order that the circuit court’s September 23 order on preliminary injunctive relief pursuant to Rule 65 is hereby vacated, and we dismiss the underlying complaint with prejudice for lack of subject-matter jurisdiction. The Clerk of the Supreme Court of Arkansas shall cause a mandate to be issued in that case number.

Also

Because this case implicates potential violations of the Arkansas Code of Judicial Conduct and the Arkansas Rules of Professional Conduct, particularly the flagrant breaches of confidentiality and the public trust, we refer Justice Hudson to the Arkansas Judicial Discipline and Disability Commission for investigation and refer Justin Zachary of Denton, Zachary & Norwood PLLC to the Office of Professional Conduct for investigation.

BAKER and HUDSON, JJ., dissent with written opinions to follow.

From Justice Hudson's online biography

Twenty-twenty-one found Justice Hudson spearheading the Court’s effort to create the Office of Ethics Counsel after learning of the Arkansas bar’s need for independent, confidential advice when faced with ethical dilemmas. Currently, Justice Hudson serves as the supervising justice for the Office of Professional Conduct, the Committee on the Unauthorized Practice of Law, and the Client Security Fund committee. In addition to her official duties on the court, Justice Hudson devotes her time to mentoring law students and speaking to civic groups across the state. 

Arkansas Times was highly critical of the order

The Arkansas Supreme Court is above the law, and anyone who dares question that fact will be punished. That’s the gist of an opinion from the court released today in the ongoing Freedom of Information Act lawsuit filed by Associate Justice Courtney Hudson against two agencies of the court...

The current dispute between the justices began when Mark Friedman, senior editor of Arkansas Business, sent a FOIA request to the Administrative Office of the Courts and the Office of Professional Conduct on Aug. 23, requesting “any and all communications” since Jan. 1, 2023, between Hudson and Lisa Ballard. Ballard was fired as head of the Office of Professional Conduct in May with no reason given publicly for the termination.

Charlene Fleetwood, acting director of the Office of Professional Conduct, told Kemp on Sept. 3 that she was going to respond to the request by noting she was not custodian of the records and also that the requested documents would be exempt under the FOIA’s working papers exemption, which covers “unpublished … correspondence of … Supreme Court Justices.” Kemp forwarded Fleetwood’s email to the other justices for discussion.

On Sept. 5, Zach Mayo, general counsel for the Arkansas attorney general, sent a memo to the justices, stating that neither the Administrative Office of the Courts nor the Office of Professional Conduct was custodian of the requested records. Even if they were, Mayo explained, the working papers exemption would apply and prevent release. 

Despite that memo, later that same day, by a vote of 5-2 (with Hudson and Justice Karen Baker dissenting), Kemp ordered Fleetwood to provide Friedman with the requested records. Hudson filed her lawsuit and motion for preliminary injunction first thing the following morning, Sept. 6. James granted the preliminary injunction shortly after 10:30 a.m. that same day.

Following a short hearing last week, James extended the preliminary injunction “for a reasonable amount of time” to allow the parties to respond to various legal pleadings. James entered a written order, memorializing this decision, yesterday.

While Supreme Court opinions are generally handed down on Thursday, this issue arrived early.

It can’t be overstated how absurd today’s opinion is: the court is effectively saying that anything they do, even getting involved in a FOIA request for records over which they have no custodial control and have no pending case on which to rule, can never be challenged. If anyone dares to challenge them – say, by hiring a lawyer and filing suit in circuit court seeking a declaratory judgment to clarify a question of law – the Supreme Court can and will seek disciplinary sanctions against both the challenger and their attorney. 

In short, anyone challenging anything that contradicts the Supreme Court’s belief that it is infallible should be prepared to take that case to federal court. State courts are a complete no-go under today’s opinion.

Channel 5 reported

Arkansas Supreme Court justices have referred fellow Justice Courtney Rae Hudson to the Arkansas Judicial Discipline & Disability Commission for investigation while also dismissing a case she filed to stop the release of certain documents to Arkansas Business.

The seven-member court issued its unsigned order on Tuesday, with Hudson and Justice Karen Baker dissenting. In addition to dismissing Hudson’s civil lawsuit, the order scolded Pulaski County Circuit Judge Patricia James for granting Hudson a temporary injunction preventing the release of the documents despite evidence that five members of the Supreme Court had already voted to release some of the materials.

The Arkansas Times reported on resignations of OPR staff in the wake of the Ballard departure

The Arkansas judiciary office that oversees discipline for attorneys and judges has three recent vacancies on its seven-person staff, including the executive director position, and the reason for the former director’s departure is unclear...

Senior staff attorney Anna Catherine Cargile and staff attorney Cameron Bowden each voluntarily resigned from the Office of Professional Conduct, according to their personnel files. Bowden resigned in April to take a job with the city of Little Rock, according to his resignation letter, and Cargile resigned May 17.

Notably, Justice Hudson had dissented in a case where the court majority reinstated the law license of the son of former Governor Asa Hutchinson.

This is a situation well worth watching. There is obviously much more to this story. (Mike Frisch)

Judge Removed And Sanctioned

Dan Trevas has a summary of a case on the web page of the Ohio Supreme Court

The Supreme Court of Ohio today immediately removed Stow Municipal Court Judge Kim Hoover from office and suspended him from the practice of law for 18 months, with six months stayed, for the tactics he used to collect fines and fees.

Based on 16 criminal cases before Judge Hoover, the Supreme Court found he committed 48 violations of the Code of Judicial Conduct and 16 violations of the Rules of Professional Conduct. Judge Hoover wrongfully jailed two men for failure to pay fines and court costs, and 14 other criminal defendants were “coerced into paying fines and costs under unlawful threats of incarceration,” the Court ruled.

Writing for the Court, Justice Patrick F. Fischer explained that only by following a specific state law can a person be jailed for failing to pay a fine, and the Ohio Constitution prevents a person from being jailed for failing to pay court costs. Judge Hoover expressed during disciplinary proceedings that following the law, R.C. 2947.14, was impractical.

“Hoover’s decision to disregard the Ohio Constitution, statutes enacted by the General Assembly, and this court’s thorough guidance in favor of his own preferences is unjustifiable,” Justice Fischer wrote.

The opinion noted Judge Hoover expressed an attempt to reduce taxpayer funds used to support the municipal court by trying to hold those who committed crimes accountable for their actions. However, the judge was overzealous in his collection efforts and showed bias against those of lower socioeconomic status, the Court concluded.

“Hoover leaned into the idea of a debtors’ prison, unlawfully incarcerating or threatening to incarcerate individuals for nonpayment of fines without due process, and unconstitutionally incarcerating or threatening to incarcerate individuals for nonpayment of court costs,” Justice Fischer stated.

Six months of Judge Hoover’s suspension was stayed on the condition he not commit further misconduct. His suspension from office is without pay and will continue for the duration of his suspension from the practice of law.

Chief Justice Sharon L. Kennedy and Justices Michael P. Donnelly, Melody Stewart, and Joseph T. Deters joined the opinion. Justice R. Patrick DeWine concurred in judgment only.

 Justice Jennifer Brunner did not participate in the case.

Sanction Splits Proposed Suspension Time 
In May 2022, the Office of Disciplinary Counsel filed a complaint against Judge Hoover with the Board of Professional Conduct. The complaint alleged the same four rule violations for 16 cases.

In each instance, Judge Hoover was charged with violating three judicial rules, including one requiring a judge to act at all times to promote public confidence in the judiciary's independence, integrity, and impartiality. The other rules require a judge to uphold and apply the law and prohibit a judge from using language or acting in a way that can be perceived as biased based on race, disability, or socioeconomic status. In addition, the disciplinary counsel claimed Judge Hoover violated the rule that a lawyer not engage in conduct “prejudicial to the administration of justice,” including showing “indifference to a legal obligation,” such as not following the law.

The board found Judge Hoover had committed all the violations and recommended he be suspended from the practice of law for two years. Judge Hoover argued he twice violated the rule requiring him to apply the law but contested the other violations. He suggested the Court suspend him for one year, with six months stayed.

Supreme Court Analyzed Rule Violations
“Our criminal-justice system strives to ensure that no matter how rich or poor, each defendant receives equal justice under the law,” Justice Fischer wrote.

He explained the Ohio judicial system treats fines and court costs differently.

The General Assembly presented a procedure in R.C. 2947.14 for jailing an offender who fails to pay a fine. The opinion noted the law is the only procedure that can be used to jail someone for not paying a fine. First, a judge must separate the fine amount from court costs and any other financial penalty imposed. Then, the offender must be provided reasonable notice of a hearing, and the court must conduct a hearing on the offender’s ability to pay the fine. Offenders must be advised of a right to have an attorney and be given a chance to be heard on the matter. Lastly, the court must make a specific finding that the offender has the ability to pay but “willfully refuses to do so.”

If an offender is jailed for failing to pay a fine, the offender is granted $50 credit toward the fine for each partial or full day spent in jail.

With court costs, a criminal defendant cannot be sent to jail for failing to pay, the opinion stated. Court costs are civil, not criminal, penalties, and under Article I, Section 15 of the Ohio Constitution, a person cannot be imprisoned for a civil debt, the Court stated.

The opinion noted Ohio judges receive guidance through bench cards, produced by the Supreme Court, with imposing fines, fees, and court costs. The cards also inform a judge when incarceration is authorized for nonpayment of fines. The Court analyzed the charges against Judge Hoover in the 16 cases and found he did not comply with the law or rules, often sending or threatening to send offenders to jail for failure to pay unsegregated fines and court costs.

Judge Claims Clerical Error Led to Jailing Offender
Matthew Cannon was one of the offenders Judge Hoover imprisoned. The judge argued his intent was not to send Cannon to jail but a clerical error “resulted in a bad result.” The Court disagreed.

Cannon was arrested in 2018 for driving under suspension and making an illegal turn, both non-jailable misdemeanors. When Cannon failed to appear for his arraignment, Judge Hoover issued a warrant for his arrest. A year later, Cannon was arrested and appeared before Judge Hoover without a lawyer.

Cannon pleaded guilty to both charges and was sentenced to $125 in fines and $442 in court costs. The judge ordered Cannon to pay what he owed or be jailed for three days. The order stated Cannon would be credited $50 per day in jail. When Cannon did not pay, he was jailed for four days. Judge Hoover did not inform Cannon that he was entitled to an attorney, and the judge did not conduct an ability-to-pay hearing.

When Cannon was brought back to court, Judge Hoover asked him, “[Y]ou’ve learned your lesson about being a deadbeat?” Cannon replied, “Yes, sir.” Judge Hoover stated, “When you don’t take my orders, what happens, I put you in an orange suit and say just sit there and look at the walls.”

Judge Hoover released Cannon from jail, crediting him $250 toward his fines and court costs, and told Cannon he needed to pay the balance within 30 days or “we’re gonna be talkin’ orange again.”

By failing to separate the $125 fine from the court costs, Judge Hoover violated R.C. 2947.14 and the state constitution by sending Cannon to jail for four days. He also threatened to send Cannon back to jail to recoup unpaid court costs, which is illegal, the opinion noted.

“Hoover fully admitted he does not follow R.C. 2947.14 because the statute does not work effectively for him,” the Court stated.

The Court’s opinion noted that even after Judge Hoover was told by his bailiff that Cannon should not have been jailed, the judge maintained he still had the ability to jail Cannon again if he failed to pay the remaining balance.

“This type of behavior — ignoring the application of a statute and failing to admit when the court has unlawfully deprived a person of his liberty — fails to promote public confidence in the integrity of the judiciary and is prejudicial to the administration of justice,” the opinion stated.

Court Considered Sanctions Imposed on Judges 
When determining a sanction for Judge Hoover, the Court examined past suspensions imposed on other judges who improperly threatened those who owed money to pay up. Judge Hoover advocated for a shorter suspension, noting he gave defendants an opportunity to enter payment plans, imposed light sentences compared to what the law allows, and tried to provide defendants opportunities to be responsible so they get back on the right track.

The Court noted Judge Hoover tried to compel payment because he believed it was his responsibility that the Stow Municipal Court be self-funded, and taxpayers should not be burdened by a lack of collecting payments owed by defendants.

The Court stated those goals must be accomplished within the confines of the law. The Court noted Judge Hoover’s violations were similar to Gallia County Probate Judge William Medley, who was given an 18-month suspension with six months stayed in 2004. In Disciplinary Counsel v. Medley, the judge issued arrest warrants to those who owed but did not pay judgments against them in civil cases. Judgment collections increased from $90,000 in 1993 to $800,000 in 2003, but the Court ruled Judge Medley’s actions were “wholly unlawful.”

In addition to the suspension, the Court ruled Judge Hoover must pay the costs of disciplinary proceedings.

2023-0188. Disciplinary Counsel v. Hoover, Slip Opinion No. 2024-Ohio-4608.

(Mike Frisch)

 View oral argument video of this case

Judge Removed And Suspended

From Dan Trevas on the web page of the Ohio Supreme Court

The Supreme Court of Ohio today immediately removed Stow Municipal Court Judge Kim Hoover from office and suspended him from the practice of law for 18 months, with six months stayed, for the tactics he used to collect fines and fees.

Based on 16 criminal cases before Judge Hoover, the Supreme Court found he committed 48 violations of the Code of Judicial Conduct and 16 violations of the Rules of Professional Conduct. Judge Hoover wrongfully jailed two men for failure to pay fines and court costs, and 14 other criminal defendants were “coerced into paying fines and costs under unlawful threats of incarceration,” the Court ruled.

Writing for the Court, Justice Patrick F. Fischer explained that only by following a specific state law can a person be jailed for failing to pay a fine, and the Ohio Constitution prevents a person from being jailed for failing to pay court costs. Judge Hoover expressed during disciplinary proceedings that following the law, R.C. 2947.14, was impractical.

“Hoover’s decision to disregard the Ohio Constitution, statutes enacted by the General Assembly, and this court’s thorough guidance in favor of his own preferences is unjustifiable,” Justice Fischer wrote.

The opinion noted Judge Hoover expressed an attempt to reduce taxpayer funds used to support the municipal court by trying to hold those who committed crimes accountable for their actions. However, the judge was overzealous in his collection efforts and showed bias against those of lower socioeconomic status, the Court concluded.

“Hoover leaned into the idea of a debtors’ prison, unlawfully incarcerating or threatening to incarcerate individuals for nonpayment of fines without due process, and unconstitutionally incarcerating or threatening to incarcerate individuals for nonpayment of court costs,” Justice Fischer stated.

Six months of Judge Hoover’s suspension was stayed on the condition he not commit further misconduct. His suspension from office is without pay and will continue for the duration of his suspension from the practice of law.

Chief Justice Sharon L. Kennedy and Justices Michael P. Donnelly, Melody Stewart, and Joseph T. Deters joined the opinion. Justice R. Patrick DeWine concurred in judgment only.

 Justice Jennifer Brunner did not participate in the case.

Sanction Splits Proposed Suspension Time 
In May 2022, the Office of Disciplinary Counsel filed a complaint against Judge Hoover with the Board of Professional Conduct. The complaint alleged the same four rule violations for 16 cases.

In each instance, Judge Hoover was charged with violating three judicial rules, including one requiring a judge to act at all times to promote public confidence in the judiciary's independence, integrity, and impartiality. The other rules require a judge to uphold and apply the law and prohibit a judge from using language or acting in a way that can be perceived as biased based on race, disability, or socioeconomic status. In addition, the disciplinary counsel claimed Judge Hoover violated the rule that a lawyer not engage in conduct “prejudicial to the administration of justice,” including showing “indifference to a legal obligation,” such as not following the law.

The board found Judge Hoover had committed all the violations and recommended he be suspended from the practice of law for two years. Judge Hoover argued he twice violated the rule requiring him to apply the law but contested the other violations. He suggested the Court suspend him for one year, with six months stayed.

Supreme Court Analyzed Rule Violations
“Our criminal-justice system strives to ensure that no matter how rich or poor, each defendant receives equal justice under the law,” Justice Fischer wrote.

He explained the Ohio judicial system treats fines and court costs differently.

The General Assembly presented a procedure in R.C. 2947.14 for jailing an offender who fails to pay a fine. The opinion noted the law is the only procedure that can be used to jail someone for not paying a fine. First, a judge must separate the fine amount from court costs and any other financial penalty imposed. Then, the offender must be provided reasonable notice of a hearing, and the court must conduct a hearing on the offender’s ability to pay the fine. Offenders must be advised of a right to have an attorney and be given a chance to be heard on the matter. Lastly, the court must make a specific finding that the offender has the ability to pay but “willfully refuses to do so.”

If an offender is jailed for failing to pay a fine, the offender is granted $50 credit toward the fine for each partial or full day spent in jail.

With court costs, a criminal defendant cannot be sent to jail for failing to pay, the opinion stated. Court costs are civil, not criminal, penalties, and under Article I, Section 15 of the Ohio Constitution, a person cannot be imprisoned for a civil debt, the Court stated.

The opinion noted Ohio judges receive guidance through bench cards, produced by the Supreme Court, with imposing fines, fees, and court costs. The cards also inform a judge when incarceration is authorized for nonpayment of fines. The Court analyzed the charges against Judge Hoover in the 16 cases and found he did not comply with the law or rules, often sending or threatening to send offenders to jail for failure to pay unsegregated fines and court costs.

Judge Claims Clerical Error Led to Jailing Offender
Matthew Cannon was one of the offenders Judge Hoover imprisoned. The judge argued his intent was not to send Cannon to jail but a clerical error “resulted in a bad result.” The Court disagreed.

Cannon was arrested in 2018 for driving under suspension and making an illegal turn, both non-jailable misdemeanors. When Cannon failed to appear for his arraignment, Judge Hoover issued a warrant for his arrest. A year later, Cannon was arrested and appeared before Judge Hoover without a lawyer.

Cannon pleaded guilty to both charges and was sentenced to $125 in fines and $442 in court costs. The judge ordered Cannon to pay what he owed or be jailed for three days. The order stated Cannon would be credited $50 per day in jail. When Cannon did not pay, he was jailed for four days. Judge Hoover did not inform Cannon that he was entitled to an attorney, and the judge did not conduct an ability-to-pay hearing.

When Cannon was brought back to court, Judge Hoover asked him, “[Y]ou’ve learned your lesson about being a deadbeat?” Cannon replied, “Yes, sir.” Judge Hoover stated, “When you don’t take my orders, what happens, I put you in an orange suit and say just sit there and look at the walls.”

Judge Hoover released Cannon from jail, crediting him $250 toward his fines and court costs, and told Cannon he needed to pay the balance within 30 days or “we’re gonna be talkin’ orange again.”

By failing to separate the $125 fine from the court costs, Judge Hoover violated R.C. 2947.14 and the state constitution by sending Cannon to jail for four days. He also threatened to send Cannon back to jail to recoup unpaid court costs, which is illegal, the opinion noted.

“Hoover fully admitted he does not follow R.C. 2947.14 because the statute does not work effectively for him,” the Court stated.

The Court’s opinion noted that even after Judge Hoover was told by his bailiff that Cannon should not have been jailed, the judge maintained he still had the ability to jail Cannon again if he failed to pay the remaining balance.

“This type of behavior — ignoring the application of a statute and failing to admit when the court has unlawfully deprived a person of his liberty — fails to promote public confidence in the integrity of the judiciary and is prejudicial to the administration of justice,” the opinion stated.

Court Considered Sanctions Imposed on Judges 
When determining a sanction for Judge Hoover, the Court examined past suspensions imposed on other judges who improperly threatened those who owed money to pay up. Judge Hoover advocated for a shorter suspension, noting he gave defendants an opportunity to enter payment plans, imposed light sentences compared to what the law allows, and tried to provide defendants opportunities to be responsible so they get back on the right track.

The Court noted Judge Hoover tried to compel payment because he believed it was his responsibility that the Stow Municipal Court be self-funded, and taxpayers should not be burdened by a lack of collecting payments owed by defendants.

The Court stated those goals must be accomplished within the confines of the law. The Court noted Judge Hoover’s violations were similar to Gallia County Probate Judge William Medley, who was given an 18-month suspension with six months stayed in 2004. In Disciplinary Counsel v. Medley, the judge issued arrest warrants to those who owed but did not pay judgments against them in civil cases. Judgment collections increased from $90,000 in 1993 to $800,000 in 2003, but the Court ruled Judge Medley’s actions were “wholly unlawful.”

In addition to the suspension, the Court ruled Judge Hoover must pay the costs of disciplinary proceedings.

2023-0188. Disciplinary Counsel v. Hoover, Slip Opinion No. 2024-Ohio-4608.

 View oral argument video of this case.

(Mike Frisch)

Judge Removed And Suspended

From Dan Trevas on the web page of the Ohio Supreme Court

The Supreme Court of Ohio today immediately removed Stow Municipal Court Judge Kim Hoover from office and suspended him from the practice of law for 18 months, with six months stayed, for the tactics he used to collect fines and fees.

Based on 16 criminal cases before Judge Hoover, the Supreme Court found he committed 48 violations of the Code of Judicial Conduct and 16 violations of the Rules of Professional Conduct. Judge Hoover wrongfully jailed two men for failure to pay fines and court costs, and 14 other criminal defendants were “coerced into paying fines and costs under unlawful threats of incarceration,” the Court ruled.

Writing for the Court, Justice Patrick F. Fischer explained that only by following a specific state law can a person be jailed for failing to pay a fine, and the Ohio Constitution prevents a person from being jailed for failing to pay court costs. Judge Hoover expressed during disciplinary proceedings that following the law, R.C. 2947.14, was impractical.

“Hoover’s decision to disregard the Ohio Constitution, statutes enacted by the General Assembly, and this court’s thorough guidance in favor of his own preferences is unjustifiable,” Justice Fischer wrote.

The opinion noted Judge Hoover expressed an attempt to reduce taxpayer funds used to support the municipal court by trying to hold those who committed crimes accountable for their actions. However, the judge was overzealous in his collection efforts and showed bias against those of lower socioeconomic status, the Court concluded.

“Hoover leaned into the idea of a debtors’ prison, unlawfully incarcerating or threatening to incarcerate individuals for nonpayment of fines without due process, and unconstitutionally incarcerating or threatening to incarcerate individuals for nonpayment of court costs,” Justice Fischer stated.

Six months of Judge Hoover’s suspension was stayed on the condition he not commit further misconduct. His suspension from office is without pay and will continue for the duration of his suspension from the practice of law.

Chief Justice Sharon L. Kennedy and Justices Michael P. Donnelly, Melody Stewart, and Joseph T. Deters joined the opinion. Justice R. Patrick DeWine concurred in judgment only.

 Justice Jennifer Brunner did not participate in the case.

Sanction Splits Proposed Suspension Time 
In May 2022, the Office of Disciplinary Counsel filed a complaint against Judge Hoover with the Board of Professional Conduct. The complaint alleged the same four rule violations for 16 cases.

In each instance, Judge Hoover was charged with violating three judicial rules, including one requiring a judge to act at all times to promote public confidence in the judiciary's independence, integrity, and impartiality. The other rules require a judge to uphold and apply the law and prohibit a judge from using language or acting in a way that can be perceived as biased based on race, disability, or socioeconomic status. In addition, the disciplinary counsel claimed Judge Hoover violated the rule that a lawyer not engage in conduct “prejudicial to the administration of justice,” including showing “indifference to a legal obligation,” such as not following the law.

The board found Judge Hoover had committed all the violations and recommended he be suspended from the practice of law for two years. Judge Hoover argued he twice violated the rule requiring him to apply the law but contested the other violations. He suggested the Court suspend him for one year, with six months stayed.

Supreme Court Analyzed Rule Violations
“Our criminal-justice system strives to ensure that no matter how rich or poor, each defendant receives equal justice under the law,” Justice Fischer wrote.

He explained the Ohio judicial system treats fines and court costs differently.

The General Assembly presented a procedure in R.C. 2947.14 for jailing an offender who fails to pay a fine. The opinion noted the law is the only procedure that can be used to jail someone for not paying a fine. First, a judge must separate the fine amount from court costs and any other financial penalty imposed. Then, the offender must be provided reasonable notice of a hearing, and the court must conduct a hearing on the offender’s ability to pay the fine. Offenders must be advised of a right to have an attorney and be given a chance to be heard on the matter. Lastly, the court must make a specific finding that the offender has the ability to pay but “willfully refuses to do so.”

If an offender is jailed for failing to pay a fine, the offender is granted $50 credit toward the fine for each partial or full day spent in jail.

With court costs, a criminal defendant cannot be sent to jail for failing to pay, the opinion stated. Court costs are civil, not criminal, penalties, and under Article I, Section 15 of the Ohio Constitution, a person cannot be imprisoned for a civil debt, the Court stated.

The opinion noted Ohio judges receive guidance through bench cards, produced by the Supreme Court, with imposing fines, fees, and court costs. The cards also inform a judge when incarceration is authorized for nonpayment of fines. The Court analyzed the charges against Judge Hoover in the 16 cases and found he did not comply with the law or rules, often sending or threatening to send offenders to jail for failure to pay unsegregated fines and court costs.

Judge Claims Clerical Error Led to Jailing Offender
Matthew Cannon was one of the offenders Judge Hoover imprisoned. The judge argued his intent was not to send Cannon to jail but a clerical error “resulted in a bad result.” The Court disagreed.

Cannon was arrested in 2018 for driving under suspension and making an illegal turn, both non-jailable misdemeanors. When Cannon failed to appear for his arraignment, Judge Hoover issued a warrant for his arrest. A year later, Cannon was arrested and appeared before Judge Hoover without a lawyer.

Cannon pleaded guilty to both charges and was sentenced to $125 in fines and $442 in court costs. The judge ordered Cannon to pay what he owed or be jailed for three days. The order stated Cannon would be credited $50 per day in jail. When Cannon did not pay, he was jailed for four days. Judge Hoover did not inform Cannon that he was entitled to an attorney, and the judge did not conduct an ability-to-pay hearing.

When Cannon was brought back to court, Judge Hoover asked him, “[Y]ou’ve learned your lesson about being a deadbeat?” Cannon replied, “Yes, sir.” Judge Hoover stated, “When you don’t take my orders, what happens, I put you in an orange suit and say just sit there and look at the walls.”

Judge Hoover released Cannon from jail, crediting him $250 toward his fines and court costs, and told Cannon he needed to pay the balance within 30 days or “we’re gonna be talkin’ orange again.”

By failing to separate the $125 fine from the court costs, Judge Hoover violated R.C. 2947.14 and the state constitution by sending Cannon to jail for four days. He also threatened to send Cannon back to jail to recoup unpaid court costs, which is illegal, the opinion noted.

“Hoover fully admitted he does not follow R.C. 2947.14 because the statute does not work effectively for him,” the Court stated.

The Court’s opinion noted that even after Judge Hoover was told by his bailiff that Cannon should not have been jailed, the judge maintained he still had the ability to jail Cannon again if he failed to pay the remaining balance.

“This type of behavior — ignoring the application of a statute and failing to admit when the court has unlawfully deprived a person of his liberty — fails to promote public confidence in the integrity of the judiciary and is prejudicial to the administration of justice,” the opinion stated.

Court Considered Sanctions Imposed on Judges 
When determining a sanction for Judge Hoover, the Court examined past suspensions imposed on other judges who improperly threatened those who owed money to pay up. Judge Hoover advocated for a shorter suspension, noting he gave defendants an opportunity to enter payment plans, imposed light sentences compared to what the law allows, and tried to provide defendants opportunities to be responsible so they get back on the right track.

The Court noted Judge Hoover tried to compel payment because he believed it was his responsibility that the Stow Municipal Court be self-funded, and taxpayers should not be burdened by a lack of collecting payments owed by defendants.

The Court stated those goals must be accomplished within the confines of the law. The Court noted Judge Hoover’s violations were similar to Gallia County Probate Judge William Medley, who was given an 18-month suspension with six months stayed in 2004. In Disciplinary Counsel v. Medley, the judge issued arrest warrants to those who owed but did not pay judgments against them in civil cases. Judgment collections increased from $90,000 in 1993 to $800,000 in 2003, but the Court ruled Judge Medley’s actions were “wholly unlawful.”

In addition to the suspension, the Court ruled Judge Hoover must pay the costs of disciplinary proceedings.

2023-0188. Disciplinary Counsel v. Hoover, Slip Opinion No. 2024-Ohio-4608.

 View oral argument video of this case.

(Mike Frisch)

Release Me

Ohio Disciplinary Counsel has charged a Dayton judge with violations of the Code of Judicial Conduct in connection with conduct surrounding the release of an incarcerated criminal defendant.

The underlying convictions "arose from an incident in which [defendant] knocked a police officer to the ground, jumped in the driver's seat of the police officer's cruiser, and drove over the officer's arm while fleeing the scene" and had been sentenced by a different judge to an indeterminate prison term of five to six years.

The defendant's mother was employed at medical practice patronized by both the sentencing judge and the Respondent.

The complaint alleges extensive ex parte communications concerning the case between Respondent and the mother.

The sentencing judge retired without having ruled on a motion for judicial release; another judge then denied the motion.

Respondent allegedly had the defendant brought to his courtroom and had an ex parte communication with him.

He then granted the release motion in open court with the parties present; he escorted the defendant out of the courthouse to meet mother and defendant's children.

The State appealed the release as unlawful; another judge learned of the conduct and had the case transferred to a different judge.

Two judges then filed the ethics complaint.

The Ohio Court of Appeals, Second District dismissed the State's appeal of the release order as moot

The State of Ohio appeals the trial court's order granting judicial release to Aaron Cox. It argues that Cox was not yet permitted to file a motion for judicial release under R.C. 2929.20(C), that the trial court failed to hold a hearing on the motion under R.C. 2929.20(D), and that the court failed to make findings under R.C. 2929.20(J). For the following reasons, the State's appeal will be dismissed as moot.

...Because Cox's judicial release has been revoked and he again is serving his prison sentence, there is no remedy that we could provide even if we were to agree  with the State that the trial court's grant of judicial release was improper.

The Dayton Daily News reported in June of this year on calls for the judge's resignation on unrelated allegations

A former Montgomery County courts employee was awarded $70,000 in a settlement for a civil rights lawsuit that alleged he was wrongfully terminated because of his disabilities after being forced to do work at a judge’s private home and law firm.

The civil suit, filed in 2020 in federal court against the Montgomery County commission and Montgomery County Common Pleas Court Judge Richard Skelton, alleged that the judge’s former judicial assistant was retaliated against after taking multiple medical leaves before being diagnosed with cancer.

(Mike Frisch)

Dismissal Of Judicial Ethics Charges Rejected

The Michigan Judicial Tenure Commission rejected a Master's dismissal of a complaint and ordered that a hearing be conducted

Thus, in this case, we reject that the Master’s strict and overly technical application of the standards under MCR 2.116(C)(10) in recommending interlocutory dismissal of this proceeding based upon a perceived lack of evidence to create a genuine issue of material fact for the public hearing. The Commission already deemed the evidence from the investigation sufficient to authorize and file FC 106. MCR 9.224(A). Evidentiary concerns regarding the video of the incident on Mackinac Island should be handled at the hearing but, again, we do not understand the video to be in genuine dispute by the parties.

Further, disciplinary counsel should not be required to present all or any of its witness testimony in affidavits pre hearing. This is particularly true in this case, where the Master has already denied disciplinary counsel’s request to consolidate this proceeding with the very closely related proceeding involving the same incident on Mackinac Island in FC 105 as to Respondent Judge Brue, thereby necessitating disciplinary counsel to call the same eleven anticipated witnesses to give the same testimony in two proceedings instead of one proceeding. The Master’s interlocutory recommendation here would have disciplinary counsel present these witnesses’ testimony for at least the third time, in affidavit format, which is simply not required as a precursor to the public hearing under subchapter 9.200, and is overly burdensome for all involved (including the witnesses). The Commission agrees with disciplinary counsel that what the Master required on dispositive motion practice “is precisely what the hearing is for.” (9/1/23 Response, p. 5.) Respondent in this case is no doubt fairly informed of the charges against her and the misconduct of which she is accused, which is all that is required. See Mikesell, 396 Mich at 532. The hearing should be conducted.

Detroit News reported on the charges

An Oakland County district court judge is accused of lying to investigators while they looked into a complaint regarding a fellow judge, according to a public complaint filed by the Michigan Judicial Tenure Commission last week.

Southfield's 46th District Court Judge Debra Nance is accused of making false statements on two occasions, in July 2020 and in September 2021. Nance was not immediately available for comment.

The investigation into Nance is connected to another complaint issued before Thanksgiving against Wayne County 36th District Court Judge Demetria Brue, who allegedly lied about being assaulted by a bike shop owner at a judicial conference in August 2019 on Mackinac Island.

Brue asked the bicycle shop for a discount because Nance had trouble operating the bicycle they rented, according to the complaint filed against Brue. Nance primarily watched as Brue spoke to the owner of the shop.

When the employees and owner denied her the discount, Brue allegedly told them she and Nance were judges and tried to reach across the cash register to take back their receipt. The receipt ripped and Brue accused the owner of assaulting her and said she was going to call the police, according to Brue's complaint.

She allegedly said something along the lines of, "Do you know what is now going to happen to you, a Caucasian man that's found guilty of striking an African American female judge?" She told the owner she was shaken and feared for her safety.

When police reviewed security camera footage, they said it appeared that Brue had been the assaulter, according to the complaint against Brue.

(Mike Frisch)

Enemy At The Gate[d Community]

The Florida Judicial Ethics Advisory Committee has issued an amended opinion on a judge's proposed advocacy

A judge may advocate pro se against creation of gated community adjacent to the judge’s property, which advocacy may include communicating with, meeting with, and attending public meetings involving legislative or executive staff and officials, posting signs in the judge’s yard, and wearing messaged apparel.

The judge may not: use the prestige of judicial office for personal gain, represent the interests of others or any group, participate in fundraising or partisan political activity, allow the judge’s advocacy to interfere with performance of judicial duties, or cause concern regarding the judge’s impartiality or independence. 

Issue

1.  Whether a judge may advocate on behalf of the judge to actively oppose creation of a gated community in a portion of the judge’s neighborhood by communicating with government staffers and county officials, attending and speaking at public meetings or hearings, wearing messaged apparel, and posting a sign in the judge’s yard opposing the gated community.

ANSWER:  Yes, as long as the judge proceeds purely pro se representing the judge and the judge’s interests only.

2.  Whether the judge’s non-judicial partner’s activities in opposition to the gated community are restricted by the Code of Judicial Conduct.

ANSWER:  No, as long as the partner does not appear to be acting indirectly as the judge’s representative and doing what the judge is prohibited from personally doing.

Reasoning

The judge is not planning to expound on the law, legal system or administration of justice when consulting with county staff and officials, nor when appearing at any public hearings; thus, that exception does not come into play.  The judge’s inquiry focuses on pro se activities on a matter involving the judge or the judge’s interests, which is specifically permitted by the second exception.  “Pro se” is defined as acting or appearing for oneself by Black’s Law Dictionary, 5th Edition, pg. 1099.  Thus, subject to compliance with other Code provisions, the judge would be relatively free to proceed individually to express and advocate for the judge’s personal concerns about the judge’s property and personal opposition to creation of a gated community when consulting with the county staffers or officials and while attending public meetings.

However, neither  of those Canon sections provides an exception that would permit the judge to advocate for the opposition group of half-acre homeowners that has interests and goals similar if not identical to the judge’s.  In the Commentary to Canon 5G, the distinction is made between a judge practicing law in the representation of others, which is prohibited, as opposed to proceeding pro se, i.e. self-representation, in legal matters which is permitted.  That Commentary continues by noting that “[a] judge may act for himself or herself in . . . matters involving appearances before or other dealing with legislative and other governmental bodies.”  Therefore, the judge should avoid acting or speaking on behalf of the opposition homeowner’s group, rather than proceeding purely pro se, as that likely falls outside what is permitted by the “pro se” exception to Canons 4C and 5C(1).  See JEAC Op. 2021-03.

There is nothing in Canon 4 or 5 that forbids the judge from pro se advocacy by utilizing a yard sign or wearing messaged apparel regarding the judge or the judge’s interests, as long as the sign or apparel does not violate any other provisions of the Code of Judicial Conduct.  Wearing certain messaged apparel while the judge is expressing opposition to the gated community could create the appearance that the inquiring judge was acting on behalf of the group rather than proceeding purely pro se; that would be ill-advised.  The JEAC has consistently declined to review or approve judicial campaign materials and we likewise will not review or approve anti-gated community yard signs or messaged apparel.

In any such pro se activities by the judge opposing the special taxing district and the gated community, Canon 1 requires that the judge must personally observe high standards of conduct and integrity.  In the interactions between the judge and others regarding this dispute, Canon 2A requires the judge “to respect and comply with the law” and to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”  It is imperative that the judge’s position as a judge must not be injected into any aspect of the dispute, including communications with staff, county officials, or participation at any governmental meeting.  “A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others.”  Fla. Code Jud. Conduct, Canon 2B.  The Commentary to Canon 2B reminds judges not to allude to their judgeship to gain any personal advantage or deferential treatment and to avoid use of the judge’s official letterhead when conducting personal business.

Canon 5A requires judges to conduct all extra-judicial activities in a way that does not demean the judicial office, interfere with performance of judicial duties, appear to be coercive, etc.  According to the information provided, in keeping with the directives of Canon 5C(3)(b)(i), the judge has neither personally or directly participated, nor lent the prestige of the judicial office in the solicitation of funds to support the homeowners group’s opposition to the gated community.  The inquiring judge is aware of and will abide by Canon 7’s admonition to refrain from partisan political activity in seeking a resolution of this dispute.

(Mike Frisch)

Lest Ye Be Judged

The Maine Supreme Judicial Court censured and suspended a probate judge

In March 2024, the Committee on Judicial Conduct filed a report with us alleging that Hancock County Probate Judge William B. Blaisdell IV committed three violations of the Code of Judicial Conduct. Specifically, the Committee alleged that Judge Blaisdell

(1) violated Rule 1.1 of the Code by failing to file federal and state income tax returns for the years 2020, 2021, and 2022; failing to pay court-ordered child support and attorney fees; and acting in contempt of the District Court in a family matter in which he was a party;

(2) violated Rule 2.16(A) of the Code by failing to respond to the Committee on Judicial Conduct despite repeated requests that he do so; and

(3) violated Rule 2.16(A) of the Code by acting with a lack of candor in asserting that he never received letters from the Committee.

Judge Blaisdell concedes that his conduct violated the rules, as the Committee alleged. The question before us is what sanctions to impose on Judge Blaisdell. We heard oral argument from the parties and have considered the record and the parties’ submissions. We now censure Judge Blaisdell; suspend him as a judge for a term of one year, with all but four months of the suspension suspended, provided that Judge Blaisdell satisfies the conditions set forth below; and order that he forfeit $10,000 from the salary otherwise payable to him, representing four months of salary for the period when Judge Blaisdell will not be serving as a probate judge.

Position of the parties

The Committee urges us to refer this matter to the Legislature for possible removal of Judge Blaisdell from office. Judge Blaisdell counters that we should order an entirely suspended suspension with conditions similar to those that have now been imposed upon him in a parallel bar disciplinary matter.

The court noted the problem of decreasing public confidence in the judiciary

We view Judge Blaisdell’s misconduct as egregious and deserving of significant sanction. Disobedience of a court order by anyone is serious, but contempt of a court order by a sitting judge cannot be tolerated. We cannot expect the public to have respect and confidence in our courts when a judge himself flouts court orders.

Sanction

Having all of these principles in mind, we conclude that the sanction must include public censure, which is accomplished by publication of this opinion, in the same manner as an opinion of this Court sitting as the Law Court. We also conclude that it is appropriate to impose a disciplinary suspension from judicial office for one year. We understand that the suspension of the only probate judge in Hancock County imposes a hardship on the people of that county as well as other probate courts. A partially suspended suspension would ameliorate that harm and provide a means of monitoring Judge Blaisdell’s conduct. For those reasons, we suspend all but four months of the one-year suspension, provided that Judge Blaisdell complies with the conditions imposed in his bar disciplinary matter. Finally, to emphasize the gravity of the misconduct, we order him to forfeit the amount of $10,000 from the salary otherwise payable to him. This amount represents the equivalent of four months of Judge Blaisdell’s judicial salary for the period during which he will be fully suspended from his judicial office.

(Mike Frisch)

Loose Lips

A former Cook County Circuit Court Judge has been charged with an ethics violation by the Illinois Administrator for comments he made when he thought he was not being live-streamed after a hearing where counsel had participated remotely

Respondent, mistakenly believing that the virtual feed of his courtroom had ended, then engaged in a conversation with the Assistant State’s Attorneys and Assistant Public Defenders physically present in his courtroom about the just concluded Myles matter, and, specifically, about Mr. Myles’s attorneys, Ms. Bonjean and Mr. Kennedy. During that conversation, Respondent, referring to Ms. Bonjean, stated: “Did you see her going nuts? Glasses off, fingers through her hair, the phone’s going all over the place. It’s insane.” Respondent further stated that Ms. Bonjean’s behavior “was entertaining” for him and inquired: “Can you imagine waking up to her every day? Oh my God.” Respondent further stated, “You know what? I couldn’t have a visual on that if you paid me. There you have it.”

During the conversation described...above, Respondent also mocked and ridiculed Attorney Sam Kennedy. When a question was raised regarding who Attorney Sam Kennedy was, Respondent stated, “That’s her [Ms. Bonjean’s] man child.”

Ms. Bonjean learned of Respondent’s comments...later in the day on January 11th. Ms. Bonjean then filed a motion to preserve the livestream recording of Respondent’s courtroom from January 11, 2022. On January 13, 2022, after Ms. Bonjean filed the motion, the presiding judge of the 5th District of the Circuit Court of Cook County, the Hon. Erica Reddick, reassigned Mr. Myles’s matter to the Hon. Carol Howard.

On January 17, 2022, in connection with the allegations above, the Judicial Inquiry Board charged Respondent in case number 22 CC 2 with conduct that was prejudicial to the administration of justice and that brought the judicial office into disrepute, in violation of the Code of Judicial Conduct, Illinois Supreme Court Rule 61, Canon 1; Rule 62, Canon 2(A), and Canon 3(A)(2), (A)(3), and (A)(9).

On January 18, 2022, the Chief Judge of the Circuit Court of Cook County placed Respondent on restrictive duties. On November 6, 2022, Respondent resigned from his position as a judge. On December 2, 2022, Illinois Courts Commission dismissed the pending case against Respondent, finding that it lacked jurisdiction to hear the matter as Respondent was no longer a sitting judge.

The disparaged attorney has had an interesting career as reflected on her web page biography

After college, Bonjean attended the Manhattan School of Music where she earned a Master’s Degree in Music in Opera Performance.

After the switch to law

Since 2014, Bonjean has successfully overturned the convictions of no fewer than thirteen individuals wrongly convicted of crimes they did not commit. Bonjean has also successfully tried or settled 1983 civil rights cases totaling over $20 million dollars.

Specifically, in 2017, Bonjean obtained the largest settlement for a civil rights case in the state of New Jersey in the case of Castellani v. City of Atlantic City, et. al., 13 CV 6667, a police brutality, malicious prosecution and Due Process case with a Monell claim. The case was settled at $3,000,000.

In 2019, a jury awarded $5.2 million to Plaintiff Stanley Wrice in the matter of Wrice v. Byrne, et. al., 14 CV 5934 after they found that he was beaten into confessing to a brutal rape by Area Two Detectives. Mr. Wrice spent 31 years in prison for a crime he didn’t commit.

Bonjean represented Bill Cosby on his appeal before the Pennslyvania Supreme Court. In June 2021, Mr. Cosby’s conviction was overturned when the Court found that Mr. Cosby’s due process rights were violated when a non-prosecution agreement with a previous prosecutor meant that Mr. Cosby should not have been charged in the first place.

Additionally, in September 2021, BLG client Armando Serrano and his co-Plaintiff Jose Montanez received a $20.5 million settlement after serving 23 years in prison for crimes they didn’t commit after being framed by a former Chicago police detective.

Respondent is charged with engaging in conduct prejudicial to the administration of justice in violation of Illinois RPC 8.4(d). (Mike Frisch)

Michigan Explores Racial Disparities In Judicial Discipline

The Michigan Judicial Tenure Commission has issued an Equity Report in respone to concerned expressed about racial disparities in judicial discipline

This report responds to concerns raised by the Association of Black Judges of Michigan that the Michigan Judicial Tenure Commission (JTC) grievance process results in disproportionately severe sanctions for Black judges, particularly regarding public complaints. In response, the JTC and the Michigan State Court Administrative Office (SCAO) contracted with the National Center for State Courts (NCSC) to perform an assessment of JTC grievances between 2008 and 2022. The assessment consists of a statistical review of key decision points and outcomes in the grievance process to determine if, and where in the process, disparities and/or disproportionalities exist. The contract also anticipated additional study of key decision points if statistically significant racial disparities were found. This report describes the methods, findings, and discussion from the initial assessment and recommendations for further study.

Findings

The findings presented in this report reveal two points in the grievance process that result in disparities in outcomes between Black and White judicial officers. First, grievances against Black judicial officers are significantly more likely to advance to full investigation compared to those against White judicial officers. Also, Black judicial officers are significantly more likely to receive a public outcome than White judicial officers following a full investigation. However, this disparity occurred only for judicial officers who remained in their position during the entire investigation process.

White judicial officers under full investigation are more likely to retire, resign, or to lose reelection than Black judicial officers under full investigation. According to the analysis, if White judicial officers who left office to avoid public outcomes had remained in office, there would be no significant disparities in public outcomes between Black and White judges. Understanding the decision to retire or resign when faced with a public outcome is beyond the scope of this phase of the review but will be important to investigate in the next phase.

While not a decision point in the JTC process, it is notable that there is a significant difference in the average number of grievances per judicial officer. For every Black judicial officer in Michigan, there are 6.43 grievances in the review period. For every White judicial officer, there were 5.36 grievances. Additional efforts to more comprehensively evaluate this and other decision points in the judicial grievance process could offer a more holistic understanding of judicial officers’ experiences with grievances and provide insights about practical equity interventions within the court’s purview to address.

Next steps

The association between race and disparate outcomes at certain phases of the grievance process was established in the current analysis. This phase of the analysis found one mediating factor; the inclusion of judicial officers who left office during the grievance process eliminated racial disparity at that decision point. However, there are several more as-yet unexplored variables in the grievance process that may mediate the effect between race and grievance outcomes. Further, it will be necessary to further explore why White judicial officers are more likely to leave office during the grievance process than Black judicial officers.

The decision to explore these mediating variables in a later phase of the project was purposeful. The intent of this first phase of the project was to diagnose if there were any racial disparities in outcomes at each decision point in the grievance process and, if so, where they occurred. The next phase is to investigate the factors that may contribute to the differences in outcomes.

For example, annual reports from the JTC show that most grievances received have underlying criminal and domestic relations cases. It is possible that, for a variety of reasons, there is a difference in the race of judicial officers that handle these case types. Other variables that may play a role include (but are not limited to) grievant type, reason for grievance, grievance severity, jurisdiction location type (e.g., rural or urban), judicial tenure, gender, and past grievances. Further statistical analysis will evaluate if disparities in racial groups remain when controlling for these additional variables at various points of the grievance.

When the effects of all potentially mediating variables are accounted for, the unexplained differences between White and Black judicial officers may be attributed to the effects of bias or discrimination on the part of the decision-making entity.  In order to investigate how bias and discrimination operate to affect the grievance process outcomes, additional statistical analyses should be supplemented with interviews and file reviews to explore and comprehensively identify all potential reasons for the disparities. Even if there are no indications of explicit bias among JTC decision-makers, it is possible that implicit biases contribute to observed racial disparities in decision outcomes.

Implicit biases arise and are expressed contextually; they are influenced by systemic, cultural, institutional, organizational, and interpersonal factors and are more likely to manifest in certain situations or under certain conditions. Interventions that target these conditions in the decision-making environment and/or the decision-making process can be productive approaches to addressing concerns about implicit bias. Interviews and in-depth file review can provide the information needed to identify processes or practices that could be targeted for this kind of intervention.

Additional research can also help to understand the disparity in judicial officers’ choice to leave office during a full investigation when facing likely public outcomes. Communications with the JTC on the grievance process indicate that at any time following the decision to move to a full investigation—generally the point at which the judicial officer is made aware of the grievance—the judicial officer can offer to retire or resign. The communication exchange between the JTC and the judicial officer about this option to negotiate an agreement to retire or resign merits further study to identify factors contributing to the observed disparity at this decision point.

For example, in other sectors, research has documented that women and people of color are less likely to negotiate and, when they do, often face penalties. Moreover, structural and institutional factors, such as labor-market discrimination, may contribute to the decision whether to resign prior to the conclusion of an investigation.  Interviews with these judicial officers in the proposed next phase of study will provide insight into the options they believed were realistically available to them when they were faced with a likely public outcome stemming from the JTC’s investigation. This additional research to understand the factors contributing to the observed disparity at this decision point will help determine whether procedural improvements could be implemented in the grievance process to promote equity.

In summary, these analyses identified three points in the process where racial disparity occur and therefore need more in-depth analyses: number of grievances filed per judicial officer, grievances proceeding to full investigation, and factors influencing a judicial officer’s likelihood of remaining in or leaving their position when facing a likely public outcome. This further investigation can be accomplished using a variety of research methods to best understand the sources of disparity. Specifically, advanced statistical techniques can be used to examine factors such as grievant type, reason for grievance, jurisdiction location type (e.g., rural or urban), judicial tenure, gender, and number of past grievances.

(Mike Frisch)

Rebel Without A Job

A non-attorney town court justice should be removed from office, according to the New York Commission on Judicial Conduct.

He has been suspended since March 2023 for failure to complete required training.

Among the several allegations

Beginning in or around 2005 and continuing through in or about March 2023, respondent displayed a statue featuring a Confederate flag on his desk in his judicial office. When the door to his office was open, the Confederate flag was visible from the courtroom. When attorneys used the office to conference cases, the flag was visible to them.

On Facebook

On or about March 21, 2012, respondent posted to his Facebook page a meme entitled “AMERICAN PRESIDENTS IN UNIFORM,” which depicted former President Clinton in a High School band uniform and former President Obama wearing a turban.

On or about June 13, 2012, respondent posted to his Facebook page a meme featuring a Black man whose underwear was visible above sagging jeans accompanying the text, “Did you know that sagging pants originated in jail, and the inmates would purposely sag their pants as a sign that they were ‘available’ to other inmates for sex.”

On or about September 20, 2012, respondent shared to his Facebook page a post in support of then-presidential candidate Mitt Romney.

On or about October 1, 2012, respondent posted to his Facebook page a meme attributing the following quote to former President Barack Obama: “HEY, DON’T BE MAD. YOU’RE THE ONE WHO FELL FOR ALL MY BULLSHIT FOUR YEARS AGO.”

On or about October 12, 2012, respondent posted to his Facebook page a meme suggesting that then-Vice Presidential candidate Joseph Biden and “the Joker” – a fictional villain from the 1989 movie “Batman” – were “SEPARATED AT BIRTH.”

On or about October 12, 2012, respondent posted to his Facebook page a meme of then-Vice Presidential candidate Joseph Biden wearing clown makeup accompanied by wording which inquired what was so “DAMN FUNNY” about the “ECONOMIC CRISIS.”

On or about October 12, 2012, respondent posted to his Facebook page a meme disparaging then-Presidential candidate Barack Obama and suggesting people should vote for then-Presidential candidate Mitt Romney because he was “an adult.”

On or about October 31, 2012, respondent posted to his Facebook page a meme that stated, “THAT OBAMA SIGN IN YOUR YARD MIGHT AS WELL SAY ‘YES, I’M STUPID.’”

On or about November 16, 2012, respondent posted to his Facebook page a cartoon implying that restaurants charge an “Obamacare surcharge” to fund “FREE CONTRACEPTIVES” for women.

On or about November 17, 2012, respondent posted to his Facebook page a meme of Hillary Clinton purportedly showing her raising a glass in a toast to four dead Americans, and stating she lied to their families and to the people of the United States because she is “a coward.”

On or about November 17, 2012, respondent posted to his Facebook page a cartoon depicting President Obama as the “FOOD STAMP PRESIDENT” and suggesting food stamp recipients will “BECOME DEPENDENT” and “NEVER LEARN TO FEND FOR [THEMSELVES].”

On or about January 21, 2013, respondent posted to his Facebook page an image of a Columbia University Foreign Student Identification card depicting then-President Obama with the name “BARRY SOETORO.” Related text below the image indicated that the image had been digitally altered.

On or about March 25, 2013, and on or about May 26, 2015, respondent posted to his Facebook page a message suggesting that food stamp recipients are like “ANIMALS” who will “GROW DEPENDENT ON . . .HANDOUTS, AND . . . NEVER LEARN TO TAKE CARE OF THEMSELVES.”

On or about April 2, 2013, respondent posted to his Facebook page a meme depicting then-Vice President Joseph Biden, then-President Barack Obama, and then-Speaker of the House Nancy Pelosi in a cage accompanied by the statement, “We don’t need GUN CONTROL. We need IDIOT CONTROL.”

You get the idea.

Rebels

On or about August 26, 2017, respondent shared to his Facebook page a post stating, “Reality check: Chief Justice Taney told Lincoln any ‘state’ had a legal right to secede and return to be a ‘free and independent state’ . . i.e., an independent nation. Thus, General Robert E. Lee was in reality defending his Nation of Virginia against a murderous invasion of his country. And Lincoln was, in reality, the greatest mass murderer America has ever seen. Ain’t reality a bitch?”

On or about September 2, 2017, respondent posted to his Facebook page an image of Confederate soldiers carrying weapons and a Confederate flag that read, “35,000,000 OF US ARE THE LIVING DESCENDANTS OF BRAVE CONFEDERATE SOLDIERS AND SAILORS AND WE WILL NOT SURRENDER THEIR LEGACY TO YOUR IGNORANCE OR POLITICAL AGENDA.”

On or about September 5, 2017, respondent posted to his Facebook page an image stating, “‘I’m proud to be white’ I bet no one passes this on because they are scared of be (sic) called a racist.”

All of the above posts remained viewable as of February 7, 2024, the date of the Complaint.

Violations

In additional significant misconduct, respondent undermined the integrity of the judiciary and created at least the appearance of racial bias by displaying a statue featuring a Confederate flag on his desk in his chambers. According to New York statutes, the Battle Flag of the Confederacy is a “symbol[] of hate.” See, e.g., NY CLS Pub B §146(2), NY CLS Educ §1527-a(2) and NY CLS Gen Mun §99- x(2). It is deeply troubling that this flag was displayed on respondent’s desk in his judicial chambers for approximately 18 years until he was relieved of his judicial duties in 2023. The Confederate flag was viewable from the courtroom and by those who used respondent’s chambers to conference cases. Furthermore, respondent made public Facebook posts which also created the appearance of racial bias, including posts that praised the Confederacy. In a recent matter in which a judge created the appearance of racial bias, the Court of Appeals found removal was warranted stating, “[w]e stress that the ‘appearance of such impropriety is no less to be condemned than is the impropriety itself’ . . ..” Matter of Putorti, 40 NY3d 359, 366 (2023) (citations omitted) By displaying the Confederate flag, a divisive symbol, in his chambers and celebrating the Confederacy in his public Facebook posts, respondent created at least the appearance that he harbored racial bias which severely undermined public confidence in his integrity and impartiality.

He did not cooperate with the investigation

the Commission determines that the appropriate disposition is removal.

(Mike Frisch)