Saturday, June 8, 2024

A Holiday Affair

The West Virginia Supreme Court of Appeals granted a writ to quash a subpoena of a judge in a bar discipline matter

Petitioner, the Honorable Timothy L. Sweeney, Judge of the Circuit Court of Pleasants County, seeks a writ of prohibition to prevent the Hearing Panel Subcommittee (“HPS”) of the West Virginia Lawyer Disciplinary Board (“LDB”) from enforcing its May 8, 2023 order and May 18, 2023 memorandum opinion directing Judge Sweeney to appear for a deposition and bring certain documents. This matter stems from consolidated lawyer disciplinary proceedings concerning several lawyers: Respondents Brian K. Carr, M. Paul Marteney, Harley O. Wagner, Justin Matthew Raber, Jay William Gerber, Jr., Ira Andre Richardson, and Jordan W. West (collectively “Attorney Respondents”). According to the LDB, these attorneys were involved with a program that the City of St. Marys, West Virginia, previously operated, called “Slow Down for the Holidays” (“the program”). Attorney Carr moved the HPS to depose Judge Sweeney because it was Judge Sweeney who informed the appropriate authorities of the program. The HPS granted the motion, and Attorney Carr served Judge Sweeney with a notice of deposition and a subpoena to provide testimony and certain documents. In response, Judge Sweeney moved to quash the subpoena, which the HPS denied. In support of his request for a writ of prohibition before this Court, Judge Sweeney argues that the judicial deliberative privilege applies to the requested deposition testimony and documents. For the reasons stated below, we grant the writ.

The judge had contacted the ODC concerning an attorney's conduct; the attorney then issued a subpoena to the judge

In late 2020, the State of West Virginia charged Mary Ward with driving under the influence and knowingly or intentionally possessing a controlled substance without a valid prescription. Attorney Judith McCullough was appointed to represent Ms. Ward. During a pre-trial hearing, the State—acting through Attorney Carr, the Prosecuting Attorney of Pleasants County—offered to dismiss the pending charges against Ms. Ward in exchange for her making a payment of $1,500 in cash or gift cards to the program. Attorney McCullough communicated the offer to Ms. Ward. Despite Attorney McCullough’s recommendation to reject the offer, Ms. Ward directed her to accept it. After Ms. Ward accepted the offer and made the payment, the State, by Attorney Carr, moved to dismiss the charges.

Following the dismissal of Ms. Ward’s criminal charges, Attorney McCullough, concerned about her own conduct, spoke with several members of the legal community regarding the agreement and dismissal. Other attorneys cast doubt on the ethical propriety of the program and at least one suggested Attorney McCollough speak to a judge. Attorney McCullough then contacted Judge Sweeney, the only circuit judge in Pleasants County, to express her reservations about the program and disclose her actions regarding Ms. Ward’s case. Attorney McCullough had known Judge Sweeney in a professional capacity for several years.

After speaking with Attorney McCullough, Judge Sweeney called the Office of Judicial Disciplinary Counsel (“JDC”) and the Office of Lawyer Disciplinary Counsel (“ODC”) to inform them of the program. Judge Sweeney did not file a formal verified ethics complaint, and the ODC did not ask him to file one. The ODC initiated an investigation, and several attorneys, including Attorney Carr, self-reported their conduct to the ODC. Subsequently, the LDB filed formal statements of charges against the Attorney Respondents. In February 2021, this Court consolidated these disciplinary proceedings for discovery purposes.

The court

The HPS clearly erred when it ordered Judge Sweeney to submit to deposition and produce documents in the underlying disciplinary proceeding. See Syl. pt. 4, Hoover, 199 W. Va. 12, 483 S.E.2d 12. As explained below, we find that the testimony and records sought by the subpoena are protected by the judicial deliberative privilege...

Here, the Attorney Respondents assert that “[t]he testimony sought to be obtained from [Judge Sweeney] in this case involves the facts and circumstances surrounding the verbal report that he initiated . . . with [the] JIC and ODC[.]” The Attorney Respondents argue that the judicial deliberative privilege does not apply to the testimony they seek to compel because the information does not involve a judicial proceeding over which Judge Sweeney “presided or formulated an official judgment.” While Kaufman makes clear that the judicial deliberative privilege is not limitless, it does not mandate that the judicial officer asserting the privilege preside over the proceeding at issue.

Here

Applying the Hatcher principles to the present matter, while Judge Sweeney was not per se “disqualified” from providing testimony, guidelines must be followed. The Attorney Respondents were persistent in their quest to depose Judge Sweeney, a judicial officer. Consequently, pursuant to Syllabus point 6 of Hatcher, the HPS was required to hold a hearing to balance the interests involved when a judicial officer is asked to present testimony in a legal proceeding.  Because the HPS failed to hold the required hearing, the Attorney Respondents were also unable to “show that the testimony [they] seek[] to introduce is material and favorable to [their] case [and] that the testimony is the only possible source of testimony on the relevant information[.]” Syl. pt. 6, in part, Hatcher, 221 W. Va. 5, 650 S.E.2d 104. Ultimately, the HPS clearly erred in requiring Judge Sweeney to appear for a deposition because the information that Attorney Carr sought regarding Judge Sweeney’s mental processes and his decision to verbally report conduct to the JIC and ODC was protected through the judicial deliberative privilege, and, to the extent that any information sought was outside of the privilege, the HPS failed to hold the mandatory hearing pursuant to Hatcher.

As a final matter, we turn to whether Judge Sweeney was required to provide the requested documents. The subpoena requested all documents “evidencing any report, notice, or communication” with the JIC and/or its counsel and the LDB and/or its counsel concerning the program. For the same reasons set forth above, the judicial deliberative privilege protects these documents.

Court records

Further, the subpoena also requests all documents regarding any misdemeanor criminal cases filed and adjudicated by the Magistrate Court of Pleasants County during the years 2018 through the present, “which involved in any way the referral, deferral, or dismissal of same so that a Defendant could participate in the ‘Slow Down for the Holidays’ program.” Judge Sweeney argues that he is not the proper custodian of these records “to whom such a request should be made.” We agree. This Court has previously explained that “magistrate court clerks are the statutorily designated custodians of magistrate court records.”

(Mike Frisch)

June 8, 2024 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, May 29, 2024

Judicial Disharmony In Maryland

The Baltimore Banner reports on disheartening disharmony among judges of the Anne Arundel County (Maryland) Orphans' Court

An associate judge on a state probate court for Anne Arundel County has been ordered to stay away from the chief judge after she accused him of stalking and “increasingly aggressive and volatile” conduct.

Orphans’ Court Chief Judge Vickie Gipson on Tuesday confirmed that a peace order had been issued earlier in the day by a district court judge regarding her complaint against Associate Judge Marc Knapp.

Gipson filed a criminal complaint with the district court on Sunday in which she accused Knapp of multiple incidents of aggression toward her and staff members. The court filing accuses Knapp of stalking.

The chief judge said Knapp appears to have issues with authority and believes that he may be discriminating against her as “Black, Female judge in authority above him.”

Gipson declined to comment on her complaint, saying it’s a pending legal matter.

Knapp, who is white, said Gipson “decided to play the race card and the gender card.”

 He denied that his behavior was aggressive and volatile. However, Knapp said he and Gipson have had arguments that were so loud they received complaints from people in the registrar’s office.

Knapp said the crux of the issue is that Gipson does not have authority over him.

“She thinks that being the chief judge makes her some sort of super judge,” Knapp said. “She has never accepted the fact that we were all elected to the same position and have the same authority.”

As Maryland’s probate court, the Orphans’ Court presides over the administration of estates, according to mdcourts.gov. Orphans’ Court judges are elected every four years and sit in Baltimore City and most Maryland counties.

Knapp has been a judge with the Orphans’ Court since December 2022. Gipson has been a judge since December 2018.

In a seven-page complaint, she describes multiple instances in which she has felt threatened.

“I am in fear of being hurt because of Judge Knapp’s on-going course of conduct for the last year which included berating, demeaning and hostile language as well as acts of aggression,” Gipson wrote.

On May 24, 2023, she said, Knapp “invaded” her personal space by leaning over her desk and coming within inches of her face and saying, “You know what Vickie, if you want … respect you have to earn it.”

She said he made the remark after being asked not to invade her space or behave so aggressively.

“I was in fear of being hit because of Judge Knapp’s hostile and aggressive demeanor.”

On April 18 of this year, Gipson said Knapp hovered over her and raised his voice while she was seated at her desk. Gipson wrote that Knapp didn’t step away until a law clerk came into her office and witnessed the incident. She said she had previously asked Knapp several times to stop his aggressive conduct.

“I am concerned about my safety and the safety of others in the office who might get hurt during these unpredictable outbursts,” Gipson wrote.

Knapp said that he and Gipson were undoubtedly having an argument. What usually happens, he said, is Gipson interrupts him when he attempts to speak. In turn, he raises his voice to be heard. He said she’ll then proceed to lecture him about raising his voice.

“I object to this because I’m not going to be bossed around by an individual who I do not believe has the authority to do that,” Knapp said.

Knapp said he may have walked over to her desk and stood in front of it to address her. He believes they both were annoyed by the other’s behavior.

“I don’t think annoyance is reason to file the complaint that she filed,” Knapp said.

On April 23, the complaint claims, Knapp yelled and cursed at Gipson and Orphan’s Court Judge David Duba because they disagreed with his opinion.

“Judge Knapp’s eyes began to bulge out of his head, his face turned red, and his voice cracked as he escalated to the point of loosing or having difficulty catching his breath because of the rage he was exhibiting,” Gipson wrote.

This isn’t the first time this year that Maryland judges have been the subject of workplace complaints.

The Maryland Supreme Court removed Circuit Judge April T. Ademiluyi from the Prince George’s County bench earlier this month, citing what it called “egregious” conduct, according to The Washington Post.

The high court determined that Ademiluyi, who was elected in 2020, had violated at least a half-dozen codes of judicial conduct involving impartiality and fairness, compliance with the law and her behavior with jurors, the newspaper reported.

The judge said her removal from the bench was in retaliation for a complaint that she filed accusing colleagues of treating her with hostility for being an outsider.

(Mike Frisch)

May 29, 2024 in Judicial Ethics and the Courts | Permalink | Comments (0)

Recusal Rebuffed

A recently-filed motion for recusal on behalf of January 6 defendant Matthew Purdy and his co-defendants was swiftly denied by Senior Judge Royce Lamberth of the United States District Court for the District of Columbia

At an April 5 status conference, the Court denied defendants’ recusal motion in a lengthy oral ruling. See Min. Entry Apr. 5, 2024. The Court explained that defendants had “not come close to establishing a valid basis for disqualification” based on either the appearance of bias under 28 U.S.C. § 455(a) or personal bias under § 455(b)(1). The Court noted that recusal is only very rarely warranted by what a judge has said in the course of a judicial proceeding, because “opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible.” Liteky v. United States, 510 U.S. 540, 555 (1994).

Although defendants faulted the Court for asking hard questions of defense counsel, the Court observed that “[b]lunt language, without more, does not translate into a showing of judicial bias.” United States v. Caramadre, 807 F.3d 359, 374 (1st Cir. 2015). The Court also explained that the Court’s “measured, accurate description of the facts of January 6, facts with which the Court is familiar from numerous cases” did not trigger disqualification, emphasizing that “[d]efendants do not and cannot point to any specific comments suggestive of bias toward any defendants, let alone these specific defendants.” “To the contrary,” the Court observed, “a number of January 6 defendants have thanked the Court for fairly handling their cases” and “[o]ne defendant even credited the Court with saving his life by intervening to protect his constitutional rights at the D.C. Jail.” Finally, the Court concluded that defendants’ assertion that death threats directed at the Court had adversely affected the Court’s view of January 6 defendants was not substantiated by evidence and was precisely the sort of “conclusory, unsupported or tenuous allegations” that cannot warrant recusal. See In re Kaminski, 960 F.2d 1062, 1065 n.3 (D.C. Cir. 1992) (per curiam)

Disposition

Here, reconsideration is not warranted because the renewed motion mostly reiterates the reasons already rejected by the Court and any additional reasons fall short of a significant change that would justify reconsideration. The renewed motion mostly retreads the same ground as before: the Court’s tough questions for defense counsel Ms. Isaak, the Court’s statements relating to January 6 made in the course of prior judicial proceedings, and the Court’s statements on judicial security and its own death threats. But a motion for reconsideration is not “simply an opportunity to reargue facts and theories upon which a court has already ruled.”

(Mike Frisch)

May 29, 2024 in Judicial Ethics and the Courts | Permalink | Comments (0)

Monday, May 20, 2024

Thy Own Treasurer

The New Mexico Supreme Court has publicly censured a magistrate court judge for campaign violations

Judge Sichler’s actions violated Rules 21-101 and 21-102 of the Code of Judicial Conduct. Judge Sichler was required to designate a treasurer to file expenditure reports pursuant to Section 1-19-29(I). The treasurer she named in the expenditure report withdrew his consent, and Judge Sichler then acted as her own treasurer. This action was contrary to statute and thus was a violation of Rule 21-101 (“A judge shall respect and comply with the law . . . .”). Acting as treasurer allowed Judge Sichler to know who contributed to her campaign and know the monetary amounts of those contributions. Judge Sichler had intimate knowledge of campaign rules, having sought the office of treasurer for Valencia County in 2020. Judge Sichler’s conduct created actual impropriety by violating Section 1-19-29(I) and is contrary to Rule 21-102 (“A judge . . . shall avoid impropriety and the appearance of impropriety.”).

Misconduct

 Judge Sichler, acting as her own campaign treasurer, violated both Rule 21-402 and Rule 21-404 of the Code of Judicial Conduct. Section 62-19-34(A) of the Campaign Reporting Act requires judicial candidates to have a treasurer who is not the candidate. Judge Sichler failed to set up a valid campaign committee. Rule 21-402(A)(1)(e) requires a judicial candidate planning on accepting donations to set up a campaign committee pursuant to Rule 21-404. “This rule restricts contributions for campaigns for judicial office to sources and amounts that do not create an appearance of impropriety.” Rule 21-402 comm. cmt. 1. Rule 21-404 requires a judicial candidate to set up a campaign committee to avoid personally soliciting or accepting contributions to the candidate’s own campaign. Judge Sichler set up a campaign committee through the Secretary of State entitled The Committee to Elect Deseri Sichler. Judge Sichler was the sole member of the Committee. She listed her personal phone number, home address, and personal email as the contact for the committee.

 Judge Sichler agrees that the violations of the rules erode the public’s confidence in her ability to follow the law. The violations also reflect negatively on the New Mexico judiciary as a whole and are prejudicial to the effective administration of justice. Pursuant to this Court’s power to discipline judges under the New Mexico Constitution Article VI, Section 32, and the Court’s power of superintending control under the New Mexico Constitution Article VI, Section 3, Judge Sichler shall receive a Public Censure. Acceptance of judicial discipline protects the public, preserves the public’s confidence in the integrity, independence, and impartiality of the judicial system, and enforces the standards of conduct established by Code of Judicial Conduct. See Rule 21-216 NMRA comm. cmt. (“Cooperation with investigations and proceedings of judicial . . . discipline agencies . . . instills confidence in judges’ commitment to the integrity of the judicial system and the protection of the public.”).

This Court has considered the admitted facts and violations of the Code of Judicial Conduct and the approved Stipulation, and we hereby publicly censure Judge Sichler for willfully violating the established rules and standards that govern every New Mexico judge’s conduct. We issue this Public Censure to strengthen the public’s confidence in the integrity, impartiality, and independence of the judiciary and to remind all judges that misconduct which erodes the public’s confidence will not be tolerated.

(Mike Frisch)

May 20, 2024 in Judicial Ethics and the Courts | Permalink | Comments (0)

Friday, May 17, 2024

Theory Of Relativity

The Indiana Supreme Court has suspended an elected judge for 45 days

"The United States legal system is based upon the principle that an independent, impartial, and competent judiciary, composed of men and women of integrity, will interpret and apply the law that governs our society.” Preamble, Ind. Code of Judicial Conduct. Inherent in the judicial conduct rules are the principles that judges “must respect and honor the judicial office as a public trust and strive to maintain and enhance confidence in the legal system.” Id.

Respondent, the Honorable Scott A. Norrick, Judge of the Madison Circuit Court, has fallen far short of these standards. Respondent engaged in judicial misconduct by: (1) failing to supervise his staff in the processing of orders, which resulted in him presiding over civil cases in which he or his son were the attorneys of record; (2) erroneously issuing an ex parte change-of-custody order without giving the opposing party notice or an opportunity to respond; and (3) failing to supervise his staff in the processing of criminal cases, which led to delays in issuing warrants, missing orders and chronological case summary (“CCS”) entries, and involuntarily dismissing sixteen criminal cases.

Respondent’s actions and inactions, which began the day he assumed office, damaged the administration of justice and public trust in the judiciary. They also caused individual harm to dozens of alleged victims, witnesses, and criminal defendants whose cases were dismissed or delayed because Respondent, through his staff, failed to update warrants, set trial dates, and reflect the outcome of hearings. Perhaps most alarming, these omissions were repeatedly brought to Respondent’s attention but he took no action until the Indiana Commission on Judicial Qualifications (“Commission”) began to investigate.

Family ties led to an investigation

In April 2022, the Commission received a complaint that Respondent was presiding over cases in which his son served as counsel and in which Respondent had previously served as counsel. Two months later, Respondent tendered a self-report that acknowledged presiding over the Landmark Accounts cases and admitted the measures he had undertaken to prevent that from happening had resulted in “errors by his court staff.”

From January 20, 2021, to April 13, 2022, Respondent presided over twenty-seven cases in which his son appeared as counsel and Landmark Accounts was a party. He issued sixty-six signature-stamped orders in those cases, including orders granting the withdrawal of his own appearance as Landmark Accounts’ attorney. MyCase listed Respondent as the judicial officer in multiple Landmark Accounts cases, even though a magistrate actually heard those cases. Respondent admits he failed to adequately supervise his staff in handling the Landmark Accounts cases, which led to the public perception that he was presiding over cases in which he had previously been counsel of record or his son was counsel of record.

The investigation revealed the other violations identified above

We are troubled by the extent of this misconduct, particularly given Respondent’s prior discipline on failure-to-supervise issues and his fifteen years of experience as a town court judge. Respondent has agreed to complete additional judicial education and meet with a mentor judge to support him in handling the court’s caseload and supervising court staff. We expect Respondent to take full advantage of these opportunities to improve his court management skills.

Sanction

Respondent, Scott A. Norrick, shall be suspended without pay from the office of Judge of the Madison Circuit Court for forty-five (45) days commencing at 12:01 a.m. on June 3, 2024. 

Not unanimous

All Justices concur except Slaughter, J., who would reject the conditional agreement, believing more severe discipline is warranted.

(Mike Frisch)

May 17, 2024 in Judicial Ethics and the Courts | Permalink | Comments (0)

Judicial Campaign Ethics

The Florida Judicial Ethics Advisory Committee opines in a split decision on campaign ethics

A judicial candidate may distribute business cards and campaign literature that include the candidate’s campaign website address, where the website has an online option to make contributions to the candidate’s campaign, according to nine members of the Committee (three members would conclude the candidate may not).  A judicial candidate may not use a cover photo on the candidate’s personal Facebook page that includes the candidate’s campaign website address, where the website has an online option to make contributions to the candidate’s campaign, according to eight members of the Committee (four members would conclude the candidate may do so).

(Mike Frisch)

May 17, 2024 in Judicial Ethics and the Courts | Permalink | Comments (0)

Friday, May 10, 2024

Judge No Longer

The New York Commission on Judicial Conduct accepted a judge's resignation on a stipulation of facts

In March 2023, the Commission apprised Judge Robichaud that it was investigating two complaints alleging that she: (A) failed to renew her attorney registration within thirty days of her birthday in June 2022 and failed to change her email address so that it does not reflect her judicial title, notwithstanding that in July 2022, in a written stipulation, she affirmed to the Commission that she had done so, and (B) failed to file her 2021 financial disclosure statement with the Ethics Commission for the Unified Court System by the required deadline. In August 2023, Judge Robichaud was advised by the Commission that it was also investigating a third complaint alleging that she made prohibited political contributions.

(Mike Frisch)

May 10, 2024 in Judicial Ethics and the Courts | Permalink | Comments (0)

Monday, May 6, 2024

Judge Removed, Reasons To Follow

The Maryland Court of Appeals heard oral argument today on allegations brought against a judge and then entered an order removing the judge from office

WHEREAS, the Maryland Commission on Judicial Disabilities, pursuant to Maryland Rule 18-435(c), referred to this Court its findings, conclusions of law, and recommendation, along with the record, in In the Matter of the Honorable April T. Ademiluyi, Judge of the Circuit Court of Maryland for Prince George’s County, 7th Judicial Circuit, Case No. CJD 2022-079, for the Court’s consideration pursuant to Maryland Rule 18-437;

WHEREAS, this Court has considered the Findings of Fact, Conclusions of Law, Order and Recommendations filed by the Commission, “Respondent Judge April T. Ademiluyi’s Exceptions to Findings of Fact, Conclusions, and Recommendations,” “Respondent Judge April T. Ademiluyi’s Memorandum of Law in Support of Exceptions  to Findings of Fact, Conclusions, and Recommendations,” “The Maryland Commission on Judicial Disabilities’ Response to Respondent Judge April T. Ademiluyi’s Exceptions to Findings of Fact, Conclusions, and Recommendations,” and the parties’ arguments at a hearing before this Court on May 6, 2024;

WHEREAS, Judge Ademiluyi’s exceptions are overruled and the Commission’s conclusions that Judge Ademiluyi violated Maryland Rules 18-101.1 (Compliance with the Law), 18-101.2 (Promoting Confidence in the Judiciary), 18 102.2 (Impartiality and Fairness), 18-102.3 (Bias, Prejudice, and Harassment), 18-102.5 (Competence, Diligence, and Cooperation), 18-102.8(b) (Decorum, Demeanor, and Communication with Jurors), 18-102.9 (Ex Parte Communications), 18-102.11 (a)(4) and (c) (Disqualification), 18- 102.16(a) (Cooperation with Disciplinary Authorities), and 18-104.4(a), (b), and (d) (Political Conduct of a Candidate for Election) of the Maryland Code of Judicial Conduct are upheld;

WHEREAS, Maryland Rule 18-437(f)(1) provides that this Court may impose the disposition recommended by the Commission or any other disposition permitted by law;

WHEREAS, Article IV, § 4B(b)(1) of the Constitution of Maryland provides that, upon any recommendation of the Commission, this Court, after a hearing and upon a finding of misconduct while in office, or of persistent failure to perform the duties of the office, or of conduct prejudicial to the proper administration of justice, may remove the judge from office;

WHEREAS, this Court has carefully considered the Commission’s recommendation and has concluded that, based on the egregious nature of the misconduct in this case, removal pursuant to Article IV, § 4B(b)(1) is the appropriate disposition; Now, therefore, for reasons to be stated in an opinion later to be filed, it is this 6th day of May 2024,

ORDERED, by the Supreme Court of Maryland, that, effective immediately, April T. Ademiluyi is hereby removed from office as Judge of the Circuit Court for Prince George’s County, Maryland.

Fox 5 Washington, D.C. reported on the judge's suit against other judges

Prince George's County judge, charged with misconduct, is now accusing her colleagues of retaliation in a federal lawsuit.

In August, FOX 5 told you about Prince George's County Circuit Judge April Ademiluyi facing misconduct allegations, including failing to be impartial on the bench. 

Now, she is suing her fellow judges along with former Chief Judge Sheila Tillerson Adams, claiming that they are conspiring against her.

Judge Ademiluyi amended her federal lawsuit this week, accusing her colleagues of forging her signature on a court order. 

She also accuses a fellow judge of conspiring to sabotage her after she rejected his sexual advances, but she does not provide any details or evidence that the incident occurred in the suit. 

Ademiluyi is facing multiple charges of misconduct. 

Last summer, the Maryland Commission on Judicial Disabilities charged her with failing to perform her judicial duties impartially and engaging in inappropriate conduct during a criminal trial. 

She denies the charges.

In November, the commission filed new charges against her – this time alleging that she "engaged in repeated, non-consensual harassing communications of a personal nature with a judicial colleague" and used threatening language in communications with that colleague. 

Ademiluyi filed a formal denial of those charges with the commission that is available to the public. But she complains in her lawsuit that the commission redacted much of her denial without her permission.

The Washington Post noted the judge's primary victory as an "outsider" candidate

While sitting Circuit Court judges normally cruise to victory in the primaries, three challengers, two of whom had run before, surged to surprise wins in the Democratic primaries in Prince George’s and Montgomery counties.

The challengers — April Ademiluyi and Gladys Weatherspoon in Prince George’s and Marylin Pierre in Montgomery — ran as outsiders promising to make a difference in the criminal justice system.

“Many people are hungry for change and tired of the status quo, especially when it comes to our criminal justice system,” said Larry Stafford, the head of Progressive Maryland, a grass-roots advocacy organization that has supported Pierre and Ademiluyi in previous elections but did not endorse any candidates before the primary. “This is a victory for candidates that think differently.”

And from Maryland Matters

Ademiluyi was making her second bid for circuit court after an unsuccessful candidacy in 2016. A one-time Coast Guard engineer who is a graduate of the George Mason University School of Law, Ademiluyi — along with Weatherspoon — received the endorsement of Progressive Maryland, which has strong ties to organized labor in Maryland.

On her campaign website, she characterized herself as “the only judicial candidate not supported by the political establishment that places the corporate interest above people and ultimately does more harm to black and brown lives.” Her website added: “April will use her power as a judge to protect the rights of those who cannot protect themselves and to ensure that marginalized communities experience fairness, respect, and equality in our justice system.”

The fact that the four non-incumbents who made it onto the circuit court bench this year are African-American — three of them women — is likely to fuel arguments by opponents of getting rid of judicial elections. Responded Dumais: “One of the reasons for having the elections was that it was previously the only way that minorities could get on the bench. And yet that I don’t find that to be true now.”

She credited the three governors in office during her legislative tenure — Republican Robert L. Ehrlich Jr. and Democrat Martin J. O’Malley, as well as Republican Hogan — with treating “the decision of who’s going to be on the bench incredibly seriously” and moving to diversify the judicial appointments when it comes to race and gender. It was noted during this year’s campaign that, of three dozen circuit and district court judges in Montgomery County, half are women and one-third are people of color.

“I think if you look at the bench across the state — Prince George’s, Montgomery, Howard, Anne Arundel — they are now more diverse than they’ve been,” Dumais said.

During the 2020 legislative session, former Circuit Court Judge William T. “Billy” Murphy — now a prominent Baltimore attorney — dropped his long-time opposition to doing away with judicial elections. Murphy backed a compromise proposal by Sen. Christopher R. West (R-Baltimore County) and Del. Erek L. Barron (D-Prince George’s) that would subject circuit court judge appointees to Senate confirmation, and exempt those confirmed with 80% or more of the Senate vote from facing an electoral challenge.

Given the challenges of conducting the coming session amid the pandemic, Dumais sees little opportunity for legislation on this topic to advance in 2021. “I think that some bills will still be introduced, just so we can continue to have the conversation,” she said, predicting it’s likely to be at least 2024 before a potential change in the state constitution governing judicial elections may be on the fall ballot. “Historically, we’ve tended to do constitutional amendments in a presidential election year,” she noted.

In the meantime, when she posts to social media, Dumais said her stance in favor of doing away with elections for judges sometimes elicit comments asking “So what, you don’t trust the voters?”

“It’s not that I don’t trust the voters. Obviously, I trust the voters in my elections,” she said with a chuckle. “But I do think the judicial branch is different. And part of it is that the judges aren’t in a position to say ‘This is the kind of judge I’m going to be.’

“That’s why I think we should just be vetting them, and not necessarily allowing challengers to come in and say ‘I’m going to be a restorative justice candidate’ or ‘I’m going to be a law and order candidate’.”

(Mike Frisch)

May 6, 2024 in Judicial Ethics and the Courts | Permalink | Comments (0)

Misimpression

The Tennessee Court of Appeals affirmed the denial of a motion to recuse an assistant district attorney and judge in an support enforcement matter

Mother claimed that the assistant district attorney was unethically “representing two opposing positions” by initially making arguments that aligned with her interests but now making arguments that aligned with Father’s interests. And she believed the child support magistrate and the trial judge were improperly condoning this conflict of interest and engaging in ex parte communications with the assistant district attorney. So Mother filed a motion to recuse the assistant district attorney, the trial judge, and the child support magistrate, and to transfer the case out of Robertson County. When a new child support magistrate was assigned to the case, Mother filed a second motion to recuse him too.

Denial affirmed

We find no evidence of these violations in the numerous documents filed by Mother in support of her petition for recusal. Instead, Mother’s request for the trial judge’s recusal appears premised on a misimpression of the assistant district attorney’s role. She believes the assistant district attorney violated RPC 1.3 by not filing an enforcement petition, RPC 1.8(b) by sending the letter with expense documents to Father, and RPC 1.7(a)(2) by taking positions that aligned with Father’s interests on certain issues. These claims are based on the idea that the assistant district attorney represents Mother’s interests. The assistant district attorney does not represent Mother. See Tenn. Code Ann. § 36-5-2307(f) (explaining that the entitlement to request assistance from the State does “not create . . . a relationship of attorney and client or other fiduciary relationship between a support enforcement agency or the attorney for the agency and the individual being assisted by the agency”).

Mother also alleges that the trial judge appeared to have engaged in ex parte communications with the assistant district attorney that led her to prejudge the case and “stage” rehearsed hearings. See TENN. SUP. CT. R. 10, RJC 2.9(A). Although Mother’s filings are rife with speculation, the facts presented by Mother do not support this claim. Conjecture is insufficient to justify recusal.

(Mike Frisch)

May 6, 2024 in Judicial Ethics and the Courts | Permalink | Comments (0)

Judge Resigns After Felony Conviction

The New York Commission on Judicial Conduct has accepted a judge's resignation based on a stipulation of misconduct

In July 2023, the Commission authorized investigation of a complaint against Judge Soules based upon his having been arrested and charged with felonies for possession and sale of cocaine. In September 2023, the Commission authorized investigation of another complaint against Judge Soules, alleging that he invoked his judicial office with Herkimer police to give him a ride home from a location where he was stranded.

On April 17, 2024, Judge Soules pleaded guilty to one count of criminal sale of a controlled substance in the third degree, a felony.

(Mike Frisch)

May 6, 2024 in Judicial Ethics and the Courts | Permalink | Comments (0)

Saturday, May 4, 2024

Judge Censured

The New York Commission on Judicial Conduct has censured a judge for conduct described in a press release

The New York State Commission on Judicial Conduct has determined that County Court Judge Gregory P. Storie (St. Lawrence County) should be censured for making statements conveying his bias against a defendant and indicating his sentencing decision would be influenced by public opinion.

Judge Storie, who had been confidentially cautioned by the Commission for other misconduct only a month earlier, agreed to the censure.

Beginning in 2022, Judge Storie presided over a high-profile murder trial, People v Snow. St. Lawrence County District Attorney Gary M. Pasqua and Public Defender James M. McGahan were the lawyers. In January 2023, while conferencing unrelated cases in chambers with Mr. McGahan and an assistant district attorney who was not involved in the Snow case, Judge Storie raised the Snow case, asked whether the defendant would plead guilty as charged, and said he would impose a sentence of 25 years to life, because anything less would not look good to the media or to the victim’s family. When asked what incentive there would be to plead guilty under such circumstances, the judge replied that the defendant may do it because he appeared to be “catatonic.” Subsequently, as a result of the judge’s comments, Public Defender McGahan and DA Pasqua jointly requested that Judge Storie recuse himself from the Snow case, which he did.

Prior caution

In December 2022, Judge Storie was privately cautioned by the Commission for (1) publicly endorsing other candidates for elective office, and posting and/or soliciting posts of photographs of voted ballots on his campaign’s Facebook page; (2) failing to disqualify himself from a matter notwithstanding that he was related to the victim and the victim’s mother, a witness in the case; and (3) arbitrarily increasing bail following an application for bail reduction.

Syracuse.com reported on the underlying criminal case. (Mike Frisch)

May 4, 2024 in Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, May 2, 2024

Cuffing Child Draws Reprimand

The United States Court of Appeals for the Ninth Circuit Judicial Council has publicly reprimanded a district court judge who had handcuffs placed on a defendant's chiild

The Judicial Council finds two features of this conduct impermissible. First, the shackling of a spectator at a hearing who is not engaged in threatening or disorderly behavior exceeds the authority of a district judge. Second, creating a spectacle out of a minor child in the courtroom chills the desire of friends, family members, and members of the public to support loved ones at sentencing.

We first address the improper use of handcuffs. In directing the Deputy Marshal to handcuff Mr. Puente’s daughter and requiring her to stand in the jury box, Judge Benitez ordered her to be seized within the meaning of the Fourth Amendment. See California v. Hodari D., 499 U.S. 621, 624-25 (1991) (explaining that “the mere grasping or application of physical force” is sufficient to constitute a seizure). In addition, even for criminal defendants lawfully before the court, our law has long recognized the use of shackles, including handcuffs, can intrude on an individual’s constitutional rights, Deck v. Missouri, 544 U.S. 622, 626 (2005), and degrade the “dignity and decorum of judicial proceedings that the judge is seeking to uphold,” Illinois v. Allen, 397 U.S. 337, 344 (1970). In criminal proceedings, due process does not permit the “routine use of visible shackles” absent an individualized determination that it is necessary to maintain safety. Deck, 544 U.S. at 626. This rule reflects the reality that shackles are both physically intrusive and strongly connotative of criminality. Id. at 630. The reasons for limiting the shackling of criminal defendants resound even louder against the shackling of other individuals present in the courtroom, particularly where there is no threat to order or safety.

In this case, Mr. Puente’s daughter was present in court for the purpose of supporting her father. Under these circumstances, Judge Benitez had no authority to order her to be physically restrained. Judge Benitez cites no persuasive legal authority in his written submissions to the Committee or in his written response to the Committee’s report to justify his actions. Further, the Judicial Council is not aware of any legal authority even arguably authorizing the handcuffing and detention of a spectator at a criminal hearing who has not engaged in any behavior that threatens the dignity and order of the proceedings. Given the physical and emotional impacts of shackling and the lack of any basis for handcuffing Mr. Puente’s daughter in these circumstances, we conclude that Judge Benitez acted in a manner that violated JC&D Rule 4 and the Code of Conduct for United States Judges.

Attitude

At no point during this investigative process has Judge Benitez accepted that his actions were ill-advised, improper, and damaging to the public’s trust in the judiciary. Judge Benitez has in fact placed blame on others, particularly the Federal Defenders, for his actions that day. Judge Benitez accuses the Federal Defenders of using the letter from Mr. Puente’s daughter “as leverage,” but criminal defendants are well within their rights to solicit and submit letters of support.

Judge Benitez has, at every point, maintained that he acted only with the best intentions toward Mr. Puente’s daughter and her father. But his good intentions do not excuse his conduct during the Puente Hearing, which displayed misguided and inappropriate methods that exceeded the authority vested in him. His actions not only harmed Mr. Puente’s daughter, but also impaired the public’s trust in the institution. Judge Benitez’s arguments for why his conduct was justified in the circumstances are not persuasive, and his suggestions that this Council’s finding of judicial misconduct is a result of public pressure are incorrect. On the contrary, reinforcing the public’s trust in the judiciary is within the scope of the Council’s duties.

The Judicial Council finds that Judge Benitez’s actions towards Mr. Puente’s daughter constitute abusive or harassing behavior in violation of JC&D Rule 4.

No misconduct was found in a second matter. (Mike Frisch)

May 2, 2024 in Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, April 25, 2024

Too Late To Recuse

The Tennessee Court of Appeals affirmed the denial of a recusal motion in a divorce case as untimely

Because Wife did not file her motion for recusal promptly in accordance with Tenn. Sup. Ct. R. 10B, §1.01, we must conclude that she may not now argue that recusal is warranted based on statements made during the September 27 and November 27 hearings.

Reasons for recusal

Wife maintains that two statements made in a September 27, 2023 hearing “showed bias and impropriety by focusing its ruling on the child’s masturbation instead of the testimony of [Wife’s] good parenting and [Husband’s] inappropriate behaviors towards [Wife] and the minor child.” She also complains of not being able to present her side of the case. We need not go into detail regarding the September 27 hearing or the trial judge’s statements because Wife waited too late to assert her claim of bias.

(Mike Frisch)

April 25, 2024 in Judicial Ethics and the Courts | Permalink | Comments (0)

Prior Representation Of Expert Witness Does Not Require Recusal

Recusal is not required as a consequence of the judge's prior representation of one party's expert witness, according to a decision of the Tennessee Court of Appeals

Asserted basis for recusal

The parties engaged in discovery. Defendant disclosed an expert—structural engineer Alan Rommes (“Rommes”). Rommes was slated to testify about the structural integrity of the home. The parties agree that Rommes’ testimony is of central importance to the case, and that the trial judge’s assessment of his credibility will be key. At one point, Rommes asked counsel for Defendant who the trial judge was. When told Judge Cook, Rommes shared that Judge Cook had represented him for approximately seven years in a slip and fall case when she was a practicing attorney. The representation ended in December 2021, shortly before Judge Cook took office. On March 26, 2024, counsel for Defendant informed counsel for Plaintiff about the potential conflict. The parties agreed that Judge Cook should recuse. On March 28, 2024, Petitioners filed a joint motion for recusal. Petitioners do not allege actual bias on Judge Cook’s part, but rather that there is an appearance of impropriety based on her prior representation of Rommes.

The court

To prevail on their motion to recuse, Petitioners have to show that a person of ordinary prudence in Judge Cook’s position, with knowledge of all facts known to Judge Cook, would find a reasonable basis to question her impartiality. See Adams v. Dunavant, 674 S.W.3d 871, 878 (Tenn. 2023). That Judge Cook previously represented Rommes in an unrelated matter is not an ipso facto basis for her recusal. Petitioners point to no evidence contradicting Judge Cook’s detailed explanation of her representation of Rommes, a case which consisted mainly of delays. To be sure, one can visualize a scenario in which a trial judge’s prior representation of a witness could give rise to the appearance of impropriety. Here, however, Petitioners have only the duration of the prior representation and its proximity to when Judge Cook took the bench to go on, both of which are heavily mitigated by the different subject matter and sporadic activity in the prior case.

Petitioners say nevertheless that “[t]he trial judge inevitably formed opinions of Rommes during her seven year representation of him . . . .” We respectfully disagree. That is supposition on Petitioners’ part. As Judge Cook explained, Petitioners have not even established that Rommes’ testimony was a factor in the prior case, so his credibility may not even have been implicated. We find no reversible error in the Trial Court’s denial of Petitioners’ motions for recusal. Based on our holding regarding the merits of the recusal motions, the Trial Court’s denial based on various procedural defects is pretermitted as moot.

(Mike Frisch)

April 25, 2024 in Judicial Ethics and the Courts | Permalink | Comments (0)

Friday, April 19, 2024

Mask Issue Does Not Show Bias

The Ohio Supreme Court (Chief Judge Kennedy) has denied a motion to disqualify a municipal court judge

Albert Thrower, who avers that he is doing business as St. Anthony Church, the defendant in the two underlying cases, has filed an affidavit of disqualification pursuant to R.C. 2701.031 seeking to disqualify Judge W. Moná Scott of the Cleveland Municipal Court, Housing Division, from presiding over the cases. Judge Scott was not asked to file a response to the affidavit of disqualification.

The proceeding

On May 20, 2022, the city of Cleveland filed complaints against St. Anthony Church, charging it with misdemeanor counts of failure to comply with an order of the Cleveland Building Department. At that time, Thrower had registered “St. Anthony Church” as a fictitious name with the Ohio secretary of state. The fictitious-name registration expired November 15, 2022, because Thrower had failed to file a renewal application. On December 22, 2022, Thrower filed articles of incorporation with the secretary of state for St. Anthony Church, Inc.

The disqualification was based on conduct at a zoom hearing

Contrary to Thrower’s contention, Judge Scott did not order him to remove his mask during the January 11 hearing. The judge asked whether he was in a room by himself and whether he wanted to remove his mask. He replied, “Oh, Okay.” The judge merely asked an open-ended question; it was not a directive. Thrower did not inform the judge in response that he was uncomfortable with removing the mask due to any potential health risks. This brief interaction between the judge and Thrower does not support a finding that Judge Scott has hostile feelings or ill will toward Thrower or that the judge has formed a fixed anticipatory judgment on any remaining issue in the underlying cases.

Therefore, this allegation lacks merit.

(Mike Frisch)

April 19, 2024 in Judicial Ethics and the Courts | Permalink | Comments (0)

Friday, April 12, 2024

Spousal Interest Disqualification

A recent opinion of the Florida Judicial Ethics Advisory Committee

Judge is disqualified from serving on county election canvassing board for the specific race involving the elected county official by whom the judge’s spouse is employed as general counsel where the spouse’s continued employment in that position likely depends on the outcome of the upcoming contested election.  Judge is not disqualified from serving on the canvassing board for other races during that election cycle.

Rationale

The judge’s duties as a member of the canvassing board include many tasks that would not be perceived as affecting the outcome of any contested race.  However, the canvassing board, according to the inquiring judge and the governing statute, may determine whether an absentee vote was properly executed or timely received and may also be called upon to determine the voter’s intent if the voter’s ballot was not clearly marked.  The judge acknowledged that some races can be decided by a very close margin, meaning that any decision by the canvassing board regarding even a single ballot could conceivably change the outcome of any given race. 

Because the judge’s spouse’s continued employment as general counsel is likely contingent on the outcome of that specific election, that means that the judge’s spouse has more than a de minimis interest and indeed has an economic interest in the proceedings, should there be any contested or questioned ballots.  Returning to Fla. JEAC Op. 92-32, if the act of simply signing a candidate’s qualifying petition might reasonably create the impression of partiality of a judge who might later serve on a canvassing board, it would be hard to reach a different conclusion here.  Based on all the foregoing considerations, we conclude that the inquiring judge’s recusal or disqualification in that specific race is appropriate. 

There are occasionally circumstances that make judicial recusal impractical if it would result in delay and distant travel for the parties when there is only one county judge who would be ethically disqualified from ruling on urgent or emergency matters affecting those parties.  The commentary to Canon 3E notes that the rule of disqualification may occasionally be overridden by the rule of necessity in such situations.  However, section 102.141 has detailed provisions for how to proceed when the county judge or another member of the canvassing board is unable to serve.  Thus, the fact that the inquiring judge is the only county judge does not alter the Committee’s recommendation.

There is nothing to suggest that the judge or the judge’s spouse has any similar interest in the outcome of the other races; thus, general disqualification of the judge from serving on the canvassing board is not required by the Code of Judicial Conduct.

(Mike Frisch)

April 12, 2024 in Judicial Ethics and the Courts | Permalink | Comments (0)

Monday, April 8, 2024

Diversion For Former Judge

Commercial Appeal reports on a criminal matter involving a now former Tennessee judge

Now-former Shelby County Criminal Court Judge Melissa Boyd Friday morning pleaded guilty to misdemeanor harassment, and was given diversion.

The guilty plea comes after two tumultuous years for the first-time judge, and only days after she resigned from the position.

Boyd will not serve any prison time under the plea, and if she completes her diversion, the charges will not be entered into Boyd's record. Part of that diversion is for Boyd to enter into a 28-day in-patient facility for substance abuse treatment.

"When you come out, you must immediately report to Shelby County Veteran's Court," said Senior Judge Roy Morgan, who presided over the case. Boyd is a military veteran.

Veteran's court focuses on helping veterans who end up in the justice system after returning home. The program includes random, mandatory drug testing and counseling. Boyd will have to complete the entire program without running afoul of the program's requirements.

Boyd's diversion with the veteran's court could include additional in-patient treatment.

Boyd — who was indicted for coercion of a witness, a class D felony, and harassment, a class A misdemeanor — has been in jail custody since her bond was revoked on March 27 after she tested positive twice for cocaine.

The felony coercion charge was dismissed as part of the plea.

"Prosecutors should try to help people," District Attorney Frederick Agee, who represents Crockett, Gibson and Haywood counties, told press after the hearing. "We do that in a couple of different ways. One way is when we send people to treatment. Another way is when we send them to prison. It's my philosophy, in the district I prosecute in, that those prison beds should be reserved for violent offenders. Miss Boyd is a veteran. She has an addiction problem. She needs an opportunity to get clean and sober, and she now has an opportunity."

Though Boyd's two attorneys — Carlissa Shaw and Arthur Horne III — felt confident in taking the case to trial, the two said a positive thing, like Boyd receiving treatment, could come from "imperfect circumstances."

"I think everyone, including General Agee, wants to see Melissa Boyd in a better place," Horne said after the hearing. "We all want to see her healthy. We all want to see her deal with her addiction. And we all want to see her live and have a good quality of life, and move forward with her life. She's no longer a judge. We don't know what her future holds as a practicing attorney.

"...She does have a long road ahead of her. Sometimes, like Miss Shaw said, what other people thought was a bad thing has got uses for good. I think that this is probably the best preordained outcome that we could have asked for."

How did the charges against Boyd come about?

The charges stemmed from allegations from Boyd's former campaign manager that Boyd would show up at her house late at night, text the campaign manager about her divorce, ask about the campaign manager's current relationships and that she used her role as a judge to attempt to get the campaign manager to recant past allegations. Boyd's attorneys later said that the two women had once been in a romantic relationship.

A no-contact order for that woman, Lashanta Rudd, was entered into the plea. Rudd said in court Friday that she did not want Boyd to contact her in any way, like "voice messages" and recordings "of her having sex with other women."

Leading up to Friday's plea, Boyd was reprimanded multiple times by the Tennessee Board of Judicial Conduct due to the allegations that she was harassing her former campaign manager, that she had an addiction to marijuana, cocaine and alcohol, and that Boyd used her judicial position to solicit donations for a local school.

More:Timeline for Judge Melissa Boyd's reprimands

She was due for a removal vote in the Tennessee General Assembly Thursday, but resigned two days prior, canceling the vote. A bipartisan committee had unanimously recommended that she be removed from the bench.

Boyd had returned to Memphis after receiving treatment for "severe" alcohol, marijuana and cocaine addiction at a facility in Atlanta when she tested positive for cocaine. As part of her bond conditions, she was to undergo random drug screens with Shelby County Pretrial Services.

During her bond revocation hearing, Morgan said that Boyd had not reported to pretrial services for mandatory reporting outside of her drug tests since returning from the rehabilitation facility.

How did we get here?

The Board of Judicial Conduct first recommended that Boyd be removed in January. The board has the power to issue reprimands and recommend removal, but cannot remove a sitting judge. Only the General Assembly has the power to alter a judge's pay or remove them from the bench.

Boyd had been suspended from the bench for months prior to her resignation and told The Daily Memphian in an interview that she intended to eventually return to the bench.

In the committee hearing to recommend Boyd's removal to a joint session, members of the board estimated that Boyd had been receiving $17,000 a month, her whole paycheck, while she was suspended.

Boyd was elected to the Shelby County Criminal Court Division 9 bench in 2022, unseating incumbent Mark Ward. Her first public reprimand, for soliciting school donations in her judicial robe, came in May 2023. Since then, she has had three public reprimands — one of which was the board's recommendation that she be removed from office.

(Mike Frisch)

April 8, 2024 in Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, March 26, 2024

Judge Suspended

The North Carolina Supreme Court has suspended a General Court of Justice, District Court Division judge for 120 days without compensation

Our guidepost in determining the appropriate sanctions is the impact of the conduct on public confidence in our judicial system and ensuring the honor and integrity of judges who serve the people of this state. In re Crutchfield, 289 N.C. at 602. The stipulations in this matter establish judicial conduct troubling enough to warrant suspension, and this Court has suspended judges where a pattern of problematic conduct has been identified. See, e.g., In re Hartsfield, 365 N.C. at 426–27, 431–32 (suspending a judge engaged in a pattern of transferring traffic tickets of friends and family to her docket with the understanding the tickets would be resolved with a favorable outcome). Here, respondent was also previously sanctioned for her conduct. In re Foster, 373 N.C. 29, 31-33, 40 (2019) (censuring respondent for holding a hearing without notice, placing a mother in jail without cause and then lecturing the mother’s fifteen-year-old children in an effort to convince them to exercise visitation with their father). Further, while on notice of Inquiry No. 22-073, she engaged in the conduct described in Inquiry No. 22-395. The stipulated conduct justifies the recommended discipline.

We appreciate respondent’s cooperation with the Commission during the pendency of these proceedings, her candor, her acknowledgment of responsibility for her conduct, and her completion of additional training on ethics and professionalism. Respondent recognizes that her conduct warrants disciplinary consequences and agreed to accept the recommended disciplinary action. Weighing the severity and extent of respondent’s misconduct against her acknowledgement and cooperation, we conclude that the Commission’s recommendation of a 120-day suspension is appropriate and supported by the Commission’s findings of fact and conclusions of law.

Misconduct

On 7 July 2022, Commission Counsel filed a Statement of Charges against respondent in Inquiry No. 22-073. The charges alleged that respondent had engaged in conduct inappropriate to her office when she called the Wake County Magistrate’s Office on 3 March 2022. During the call, respondent utilized her judicial title to inquire about the custody status of her son without disclosing the familial relationship. Further, respondent yelled at the magistrate and demanded a bond reduction based upon inaccurate and incomplete information.

Before Inquiry No. 22-073 was resolved, Commission Counsel filed another Statement of Charges against respondent in Inquiry No. 22-395 on 23 February 2023. The charges alleged that respondent had demanded, without notifying her chief district court judge, that an assistant district attorney (ADA) and a presiding magistrate close their administrative courtroom for her own use, despite an active administrative order mandating that it stay open. The conduct resulted in over one hundred cases being continued.

(Mike Frisch)

March 26, 2024 in Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, March 21, 2024

It's My Party (Or Maybe Not)

The Florida Supreme Court rejected stipulated discipline agreed to by a county judge and approved by the Judicial Qualifications Commission

The JQC’s findings and recommendation of discipline involve two distinct charges for conduct during Judge Flynn’s 2022 judicial campaign: (1) Judge Flynn made multiple comments showing bias in favor of law enforcement and against persons accused of crimes; and (2) Judge Flynn attended a meeting of the Patriot Club of Lakeland—a meeting to which Flynn’s campaign opponent was not invited—and later advertised the Patriot Club’s endorsement of his candidacy. The defect in the stipulation, and by extension in the JQC’s findings and recommendation, pertains only to the second charge.

Based on the discussion in the JQC’s “Findings and Recommendation of Discipline,” the JQC appears to have determined that Judge Flynn’s Patriot Club-related conduct violated only Canon 7C(3). That canon regulates judicial candidates’ attendance at a “political party function.” Canon 7C(3) also says that a candidate should “refrain from commenting on the candidate’s affiliation with any political party or other candidate, and should avoid expressing a position on any political issue.”

The problem is that the findings and stipulation contain no proof that the Patriot Club of Lakeland is a “political party.” The JQC’s findings instead say that the club is a “political organization,” a defined term in the Code of Judicial Conduct. Under the Code, “political organization” means “a political party or other group, the principal purpose of which is to further the election or appointment of candidates to political office.” While the Code makes a “political party” a type of “political organization,” the term “political organization” also includes entities that are not a political party. In other words, the Code does not use the terms “political party” and “political organization” synonymously. The JQC erred by interpreting Canon 7C(3) in a way that ignores the difference between those terms.

We cannot overlook a legal error like this just because both parties agreed to it. So, we reject the stipulation and remand the case for further proceedings. We leave it to the parties to decide whether to propose another stipulation or to proceed in some other fashion consistent with the JQC’s rules.

LABARGA, J., specially concurring.

I agree with the majority to the extent that it remands this matter for further proceedings. However, as opposed to open-ended proceedings wherein the parties are left “to decide whether to propose another stipulation or to proceed in some other fashion consistent with the JQC’s rules,” majority op. at 3, I believe that these proceedings should involve an evidentiary hearing culminating in detailed factual findings.

Moreover, while the majority observes that the terms “political party” and “political organization” are not used synonymously under the Code of Judicial Conduct, see id., I am concerned with the practical effect of attempting to distinguish these terms and the impact of such a distinction when determining what types of conduct are permissible under the Code.

The agreed sanction was for a public reprimand and a 30-day suspension without pay. (Mike Frisch)

March 21, 2024 in Judicial Ethics and the Courts | Permalink | Comments (0)

Monday, March 18, 2024

Less Than Candid

The West Virginia Supreme Court of Appeals has reprimanded a family court judge

This matter arises from the recommendation of the West Virginia Judicial Hearing Board (hereinafter “the Board”) that respondent Deanna R. Rock, Family Court Judge of the Twenty-Third Family Court Circuit, be disciplined for three violations of the West Virginia Code of Judicial Conduct. These violations stem from alleged misrepresentations made by respondent to disciplinary authorities regarding her involvement with a letter written by a family court member of the Board; the letter addressed a pending disciplinary matter and lodged allegations of misconduct against Judicial Disciplinary Counsel (“JDC”). The Special Judicial Investigation Commission levied eight charges against respondent regarding those alleged misrepresentations and the Board found that respondent committed only three of the eight charged violations. As a result, the Board recommended that she be reprimanded and required to pay the costs of these proceedings.

Respondent objects to the Board’s findings as to the three violations and asks to be exonerated as to those charges as well, claiming that her statements about her involvement with the letter were not intentionally false, but the result of faulty memory. Special Judicial Disciplinary Counsel (“SJDC”) likewise objects to the recommended discipline and requests that the Court find respondent committed the five additional charged violations and enhance her sanction to a censure, $5,000 fine, and suspension until the end of her term.

This Court has before it all matters of record, including the parties’ stipulations, a transcript of the evidentiary hearing conducted by the Board and the exhibits introduced, as well as the briefs and arguments of counsel. Based on this Court’s independent review of the record, we agree with the Board’s conclusion that respondent committed two violations of Rule 2.16(A) and one violation of Rule 1.1 of the West Virginia Code of Judicial Conduct; however, we also find that respondent’s conduct violated Rule 1.2 as alleged in the statement of charges. We nonetheless adopt the Board’s recommended discipline and find it appropriate that respondent be reprimanded and directed to pay the costs of the proceedings.

The background

Respondent has been a member of the West Virginia State Bar since 2004 and was elected to serve as a Family Court Judge in the 23rd Family Court Circuit for a term commencing in 2017. For much of the pertinent time period, respondent was also the President of the West Virginia Family Court Judicial Association (“WVFCJA”). She has never been previously disciplined as a lawyer or judge. Although respondent’s conduct in this matter relates to alleged misrepresentations to disciplinary authorities, those alleged misrepresentations were provided in conjunction with and/or relate to two separate disciplinary matters. To provide necessary context for respondent’s conduct, our discussion requires that we delve into those matters and the surrounding circumstances.

THE GOLDSTON JUDICIAL DISCIPLINARY PROCEEDING

In late 2020, judicial complaints were filed against two family court judges for conducting so-called “judicial views” or “home visits” wherein they would personally inspect property and/or enter the homes of divorce litigants in proceedings before them for purposes of resolving personal property disputes. The most notable of these judicial complaints involved Family Court Judge Louise Goldston (“Goldston”); a majority of this Court determined that such “views” constitute warrantless searches and that Goldston should be censured and fined $1,000.00 for her conduct with regard to one such search. See In re Goldston, 246 W. Va. 61, 73, 866 S.E.2d 126, 138 (2021) (finding Goldston “left her role as an impartial judicial officer and participated in an executive function when she entered the . . . home to oversee the search”).

As President of the WVFCJA—as well as a colleague and friend—respondent communicated with Goldston during her disciplinary proceedings. For purposes of those proceedings, respondent also collaborated behind the scenes with other family court judges in defense of the propriety of the “judicial views.”  Respondent believed that ethical violations attached to these “views” could negatively impact the family court judiciary. Regardless, Goldston stipulated to various violations of the Code of Judicial Conduct in her disciplinary proceeding relating to one particular “view” and  requested that respondent and/or other family court judges send character letters to JDC onher behalf.

Respondent and two other family court judges—David Greenberg and Mary Ellen Griffith—sent letters in support of Goldston’s character to JDC in October 2020. In response to those letters, JDC Brian Lanham telephoned respondent and advised that the letters had been presented to the Judicial Investigation Commission (the “Commission”), which determined that the letters violated various provisions of the Code of Judicial Conduct including Rule 3.3 which provides that a judge “shall not testify as a character witness in a judicial, administrative, or other adjudicatory proceeding or otherwise vouch for the character of a person in a legal proceeding, except when subpoenaed to testify.” JDC Lanham followed up on this call with a confirmatory letter to respondent and the others, which he characterized as a “warning letter.”

The Goldston hearing was held 

Goldston’s disciplinary hearing was held on January 15, 2021; shortly after that hearing, JDC Teresa Tarr moved to disqualify Board member Family Court Judge Glen Stotler (“Stotler”) from the proceedings. JDC contended that, based upon the manner and content of comments made by Stotler during the disciplinary hearing suggesting the charges were meritless, Stotler demonstrated bias and prejudice against JDC. Stotler refused the recusal request. On March 16, 2021, the Board issued its recommended decision in the Goldston matter, with Stotler dissenting and opining that, despite Goldston’s stipulations, no violation of the Code of Judicial Conduct had been established Both Goldston and JDC objected to the recommended findings and the matter was placed upon this Court’s argument docket.

THE “STOTLER LETTER”

Shortly after the Board issued its recommended decision in the Goldston matter, Stotler submitted a letter dated March 25, 2021, to then-Chief Justice Evan Jenkins lodging a complaint against and requesting an investigation of JDC (the “Stotler letter”).

That complaint was dismissed

On May 13, 2021, the Investigative Panel of the West Virginia Lawyer Disciplinary Board issued its report on the investigation of JDC Tarr and Lanham, finding no merit to Stotler’s complaint and closing the matter. On May 25, 2021, Supreme Court Administrative Director Joseph Armstrong filed a complaint against Stotler with the Commission with regard to the Stotler letter. A formal statement of charges was filed against him in March 2022.

THE “MOATS LETTER”

Shortly after the Stotler letter was sent, on April 6, 2021, respondent and Judges Greenberg and Griffith jointly wrote to Lisa Tackett, Director of the Division of Court Services, regarding the “warning letter” JDC Lanham sent them in October about the Goldston character letters. They questioned JDC’s authority to issue a warning letter and expressed concern about the effect of the warning letter on their disciplinary record, as well as its potential use against them in future matters. They claimed that the West Virginia Rules of Judicial Disciplinary Procedure contained no authority for the issuance of a “warning,” particularly without permitting a judge to challenge JDC’s characterization of their conduct. In that regard, on April 23, 2021, respondent and the others jointly wrote to JDC Tarr and requested an advisory opinion on JDC’s authority to issue warnings.

On April 27, 2021, JDC Tarr wrote to respondent and the others notifying them that she and JDC Lanham had disqualified themselves from handling complaints “involving Judge Stotler or any other Judge who may have helped in the submission of [the Stotler letter]” and that, because the requested advisory opinion “relates in part to the Stotler matter,” they were disqualifying themselves as to the request as well. (Emphasis added). Per emails from respondent regarding the letter, as well as her subsequent testimony, she took umbrage at the suggestion— under her reading of the letter—that JDC Tarr was accusing her of having “helped with” the Stotler letter.

In response, on April 30, 2021, respondent and Judges Greenberg and Griffith jointly wrote to Judge Moats as Chair of the Commission (the “Moats letter”) to express concerns about JDC Tarr’s recusal letter. The Moats letter states that JDC Tarr’s recusal letter contains a “strong and unfounded implication that each of us were involved in the drafting and the submission of [the Stotler letter]” and that this implication is “completely without merit or foundation[.]” The three judges denied that they were “involved with the concept or writing of [the Stotler letter]” and stated “there is NO association between the three of us and the writing or sending of Judge Stotler’s letter.” (Emphasis added). The Moats letter is signed by all three family court judges including respondent.

Findings with respect to her conduct in the disciplinary proceeding rejected the contention that her evidence was the product of an imperfect memory

Here, respondent was found to be serially less than candid with disciplinary authorities—once while under oath. This misconduct strikes at the very heart of respondent’s expectations of litigants and attorneys who appear before her—that they will be truthful and candid in adherence to their oath and in deference to her authority over the proceedings... 

It is of no moment then that the general public may be uninterested in or unaware of the minutiae of the Stotler or Moats letters or respondent’s involvement with them; it is her lack of candor—while under oath and to those charged with policing the judiciary—that unquestionably erodes public confidence in the judiciary at large. The Court has observed that the public has a rightful expectation of scrupulous honesty from its judiciary—in both fact and appearance...

The court concluded that a reprimand was the appropriate sanction. (Mike Frisch)

March 18, 2024 in Judicial Ethics and the Courts | Permalink | Comments (0)