Thursday, October 29, 2020

Judge May Join NAACP

The Florida Judicial Ethics Advisory Committee blesses a judge's membership in the NAACP.

Opinion Number: 2020-22
Date of Issue: October 22, 2020

ISSUE

May a judge become a dues paying member of the NAACP?

ANSWER: Yes.

FACTS

The inquiring judge states that a member of the local chapter of the National Association for the Advancement of Colored People (NAACP) has urged several judges to become dues paying members of the organization. There are several levels of membership, each with its required donation; however, the base level annual membership for an adult is less than fifty dollars. The judge intends to join, but is concerned that the NAACP may be a political organization, and that if it is, the Code of Judicial Conduct may prohibit membership. The inquiring judge notes that the NAACP has many roles, some of which may be viewed as political activity. We answer the inquiry based on the assumption that the inquiring judge will not be personally involved in fundraising, act as a leader, serve as an officer or engage in political campaign activity on behalf of the NAACP.

Reasoning

The JEAC has previously analyzed whether an organization that has multiple roles, some of which are political, is a “political organization.” In Fla. JEAC Op. 09-13, this Committee considered whether a judge may become a member of the National Rifle Association because proof of current NRA membership was a condition precedent to membership in the local gun club the judge wished to join. The Committee answered that question, in part, by reference to Fla. JEAC Op. 00-22 in which it concluded that, although “the NRA is involved in political matters, it is neither a ‘political party’ nor a ‘political organization’ as defined in the Definitions of the Code of Judicial Conduct.”

We conclude that the NAACP does not meet the Code’s definition of political organization. Thus, dues paying membership in the NAACP is not prohibited by Canon 7. However, the answer to the judge’s inquiry does not end there. We again refer to JEAC Op. 09-13 which contains an informative review with summaries of earlier JEAC opinions that dealt with judicial membership in various organizations that have multifaceted roles which included political activity. That opinion does such a good job of pointing out that judges must be mindful of other relevant provisions of the Code of Judicial Conduct, that we quote from it at length:

Canon 2A states, “A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Canon 5A provides, in pertinent part, “A judge shall conduct all of the judge’s extrajudicial activities so that they do not: (1) cast reasonable doubt on the judge’s capacity to act impartially as a judge; (2) undermine the judge’s independence, integrity, or impartiality; (3) demean the judicial office; (4) interfere with the proper performance of judicial duties; (5) lead to frequent disqualification of the judge; or (6) appear to a reasonable person to be coercive.” Canon 3E(1) requires a judge to “disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.”

This Committee has consistently cautioned judges against lending the prestige of the judicial office to further the interests of advocacy groups, and it has specifically opined that judges cannot be personally involved with any lobbying activities for such organizations. However, the Committee has historically taken the position that mere membership in an organization which is well-known for its positions on political or controversial issues or promotes a particular legislative agenda is not prohibited by the Code of Judicial Conduct.

. . . .

The judge is reminded of the commentary to Canon 5C(3)(a) which provides, in pertinent part, “The changing nature of some organizations and their relationship to the law makes it necessary for a judge to regularly reexamine the activities of each organization with which the judge is affiliated in order to determine if it is proper for the judge to continue the affiliation.” This comment has equal relevance to any consideration of Canon 2A’s command that a judge act in a manner that promotes public confidence in the impartiality of the judiciary, Canon 2B’s directive that a judge not lend the prestige of judicial office to advance the private interests of another, Canon 2B’s proscription that a judge not convey the impression that others are in a special position to influence the judge, or Canon 5A’s cautions that a judge be circumspect in the judge’s extra-judicial activities. Thus, the inquiring judge must continually monitor membership in this, or any, organization to ensure that the organization’s activities and the public perception of the organization have not changed to the extent that continued membership implicates any of the various provisions of the Code of Judicial Conduct.

(Mike Frisch)

October 29, 2020 in Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, October 22, 2020

New Florida Judicial Ethics Opinions

The Florida Judicial Ethics Advisory Committee has issued several new opinions

Opinion Number: 2020-18
Date of Issue: July 13, 2020

ISSUE

May a judge or group of judges sign a proposed resolution urging that all judges remain vigilant in their continued efforts to keep racial bias out of the justice system?  May the group of judges submit the resolution to the chief judge of their circuit and to the Florida Supreme Court for consideration?

ANSWER: Yes, to both questions.

FACTS

A group of judges has been meeting together recently and participating in a “dialogue on race.” As a result of their dialogue, the members have prepared and would like to sign a document referred to as a resolution on race and equal justice.

The judges intend to present the resolution to the chief judge of their circuit and ask him or her consider it, and are also contemplating submitting it to the Florida Supreme Court for consideration...

The language of the proposed resolution urges that all judges remain vigilant in their efforts to ensure that our justice system operates without racial bias within our justice system expresses a valid concern of both judges and litigants and seeks to remind each of us to be aware of the need to conduct ourselves in a manner that would encourage confidence on the part of all persons in the fairness of the judicial system. The Committee finds that it is acceptable to voice a commitment or sign a resolution that says all judges should treat all litigants fairly and equally without regard to race, creed, color, national origin, sexual preference, gender, etc. etc. and take steps to ensure that this goal of equality is achieved. However, judges should not voice a commitment or sign a resolution that may lead to any litigants having any justification for questioning a judge’s impartiality.

A judge may purchase a raffle ticket to a charity auction.

As to writing a book

Opinion Number: 2020-21
Date of Issue: August 11, 2020

ISSUES

1. May a judge write and publish a biography of a noted attorney?

ANSWER: Yes. As long as the book does not cast reasonable doubt on the judge’s capacity to act impartially as a judge, demean the office, or interfere with judicial duties.

2. May such a work of non-fiction include accounts of criminal events and judicial decisions that may reflect negatively on the judicial system in place at the time of the events?

ANSWER: Yes. As long as the recounting of said historical events does not cast reasonable doubt on the judge’s capacity to act as a judge, demean the office, or interfere with judicial duties.

3. May a judge post the release date of the book on Facebook or other social media?

ANSWER: Yes.

4. May the judge who is the author participate in book promotions and speaking engagements about the book in Florida or other states?

ANSWER: Yes, as long as such events comply with the Canons including the avoidance of intermingling promotion activities with the responsibilities of a judge and/or demeaning the prestige of the judiciary.

The bio

The inquiring judge wishes to publish a biography of a notable criminal attorney who handled a number of high-profile cases, primarily in California, during a career that spanned several decades ending in the late 1960s. The subject attorney is no longer alive. The contents of the book will recount the career of the attorney and the facts surrounding some of his celebrated cases as well as the resulting trials. While the events chronicled in the book took place several decades ago, some accounts will likely cast a few of the judicial decisions in a negative light. The book will refrain from expressing opinions on those decisions beyond what is documented in the historical record. The judge further plans to promote the book on social media and with selected book signings and speaking engagements.

(Mike Frisch)

October 22, 2020 in Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, October 21, 2020

Disqualification Denied

The Ohio Supreme Court has entered orders in two matters denying judicial disqualification.

In one matter

Plaintiff Antwan M. Scott has filed an affidavit pursuant to R.C. 2701.03 seeking to disqualify Judge Terri Jamison from the above-referenced child-custody and child-support matter.

Mr. Scott alleges that Judge Jamison is biased against him, is biased against men in general, and has been discourteous toward him. To support his allegations, he avers that the judge has shown “extreme compassion” toward his child’s mother, repeatedly continued hearings at the mother’s request, made comments indicating that she does not care whether he sees his child, interrupts him at hearings, and once threatened to arrest him if he did not promptly return the child to her mother.

The judge filed an affidavit in response

Mr. Scott has not established that Judge Jamison has hostile feelings toward him or that she has formed a fixed anticipatory judgment on any issue in the underlying case. Nor has Mr. Scott set forth a compelling argument for disqualifying Judge Jamison to avoid an appearance of partiality. The burden in disqualification matters falls on the affiant to submit sufficient evidence demonstrating that disqualification is warranted. When necessary, an affiant should submit evidence beyond the affidavit to support the allegations contained therein. See In re Disqualification of Harwood, 137 Ohio St.3d 1221, 2013-Ohio-5256, 999 N.E.2d 681, ¶ 5. Here, Mr. Scott and Judge Jamison recall the events in the underlying case differently. Mr. Scott offered only his affidavit to support his allegations, even though many of his claims, if true, could have been substantiated by a transcript or other documentary evidence. Given the conflicting accounts in the record—and Mr. Scott’s failure to substantiate his allegations—he has failed to set forth sufficiently compelling evidence to overcome the presumption that Judge Jamison is fair and impartial.

(Mike Frisch)

October 21, 2020 in Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, October 15, 2020

Removal Of Judge Upheld

The New York Court of Appeals has upheld the decision of the Commission on Judicial Conduct to remove a judge for, among other things, improper behavior towards employees 

The evidence before the Commission with respect to charge I included the testimony of the former chief clerk of the Broome County Family Court regarding petitioner’s inappropriate behavior toward court staff, including herself. She stated that, during May and June 2017, petitioner told her that, if he “knew [she] could also cook, [he] would have gone for [her];” that “[i]t’s nice to know [he] still ha[s] that effect on [her]” when she apologized for having a hot flash; and that she “look[ed] really hot” in a particular outfit and should always wear it. A court assistant further testified that, while working with petitioner in the courtroom one afternoon in February 2017, petitioner stood up and “yelled” at her in a “demeaning” and “belligerent manner” from a distance of three or four feet away, telling her that she was not doing her job properly, was too slow, and needed to move faster. After learning that the court assistant complained about his behavior, petitioner filed a written complaint, criticizing her job performance. The chief clerk found petitioner’s complaints to be mostly “unfounded” and retaliatory.

As to financial disclosure obligations

It was not until January 2019, after the first five days of the hearing before the Referee in this matter, that petitioner reported to the chief clerk of the Broome County Family Court his extra-judicial income for the years 2015 through 2017.

He had challenged the sanction of removal

Considering petitioner’s misconduct in the aggregate, along with his prior disciplinary history, petitioner “exhibited a pattern of injudicious behavior . . . which cannot be viewed as acceptable conduct by one holding judicial office” (Jung, 11 NY3d at 374 [internal quotation marks and citation omitted]). Accordingly, the determined sanction should be accepted, without costs, and Richard H. Miller, II removed from the office of Judge of the Family Court, Broome County.

(Mike Frisch)

October 15, 2020 in Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, October 8, 2020

In Robes

The Tennessee Board of Judicial Conduct has reprimanded a judge for 

inappropriate messages [he] sent to multiple women on various social media platforms from 2015 to 2020.

Among the recipients were a legal professional who was employed by a law firm which had cases before him and a litigant who had had a child custody matter in his court.

The messages include content ranging from flirtatious to overtly sexual.

And

Most of these communications depict [him] in [his] judicial robes.

The Judge acknowledged both that he had sent the messages and that they were "beneath the dignity of judicial office."

The reprimand sets out the various judicial conduct code provisions implicated by the messages. (Mike Frisch)

October 8, 2020 in Judicial Ethics and the Courts | Permalink | Comments (0)

Monday, October 5, 2020

Who Was That Masked Judge?

The Tennessee Board of Judicial Conduct has reprimanded a judge for an "inappropriate comment" made in open court to an audience that included criminal defendants, some whom were African-American.

In that growing body of judicial misconduct allegations relating to the COVID pandemic, the judge addressed the Tennessee Supreme Court's face covering directive

the Grand Wizards of our Supreme Court said we have to wear these masks or words to that effect.

In response, the judge acknowledged the "perception problem" with the comment and indicated that it was a spontaneous statement that intended no disrespect.

The letter of reprimand noted both the racial insensitivity of the remark and that it impugned the higher court regardless of the judge's intent

Once such comments are made, the damage is done.

(Mike Frisch)

October 5, 2020 in Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, October 1, 2020

"Deadbeat" Remark Draws Rebuke

The New York Commission on Judicial Conduct has censured a town court justice who had failed to accord procedural rights to a tenant in an eviction matter. 

On December 26, 2018, respondent presided over Paul Jones v. Seneca Tarby. Only Mr. Jones was present at this proceeding. Mr. Jones did not provide respondent with a notice of petition, a petition or an executed affidavit of service indicating that a notice of petition and petition had been served on Mr. Tarby.

The judge issued a warrant of eviction and

Respondent failed to mechanically record the proceeding on January 15, 2019, notwithstanding the requirement that he do so pursuant to Section 30.1 of the Rules of the Chief Judge and Administrative Order 245/08 of the Chief Administrative Judge of the Courts.

And 

Respondent compounded his misconduct when, at the end of the proceeding during which he granted the tenant’s attorney’s motion to vacate the warrant of eviction, respondent referred to the tenant as a “deadbeat.” Every judge is obligated to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary” and to “be patient, dignified and courteous to litigants . . . and others with whom the judge deals in an official capacity.” (Rules §§100.2(A) and 100.3(B)(3)) Judges who are impartial and are viewed as impartial are vital to the essential role of the judiciary in society. When respondent called the defendant a “deadbeat” who did not pay his rent, respondent fell short of this high standard.

(Mike Frisch)

October 1, 2020 in Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, September 30, 2020

Complainant Cannot Appeal Dismissal Of Judicial Misconduct Complaint

The Maryland Court of Appeals has held that a person making a judicial misconduct complaint has no standing to challenge dismissal of the matter

On November 2, 2017, Mr. Green filed a complaint with the Commission [on Judicial Disabilities]. Although the Commission’s confidential records are not included in the record on appeal in this Court, Mr. Green asserts that his filing with the Commission included a statement of facts, under oath, alleging sanctionable conduct or disability by a judge.

On May 2, 2018, the Commission sent Mr. Green a letter, notifying him that his complaint had been reviewed and considered by the Judicial Inquiry Board and the Commission. The letter advised that, after reviewing the materials that Mr. Green submitted, and the other materials gathered during the investigation, “the Commission concluded that the evidence failed to show that the judge committed sanctionable conduct.” Accordingly, the letter stated that the Commission had dismissed the complaint, “as required by 18-406(a)(1).”

The complainant nonetheless persisted

On May 29, 2018, Mr. Green filed two complaints in the circuit court. One sought judicial review of the Commission’s dismissal of his complaint, alleging that Mr. Green “was a party to the agency decision.” The other sought a declaratory judgment...

Below

On September 14, 2018, the circuit court held a hearing on the motion to dismiss the complaint for judicial review. The court stated that it was in “uncharted territory.” The Commission reiterated the arguments in its motion, and counsel for Mr. Green argued that he had the right to request administrative mandamus.

The court ultimately granted the motion to dismiss. It stated that the reasons given by the Commission warranted dismissal.

The trial court also dismissed the declaratory judgment action.

The court rejected Green's standing as a member of the Bar

Here, the disciplinary system for judges in Maryland similarly serves to protect the public and maintain public confidence in the judiciary. It is not designed to remedy alleged wrongs to the complainant. Accordingly, consistent with the analysis set forth in other jurisdictions, Mr. Green has not shown that he was injured or aggrieved by the Commission’s decision dismissing his complaint.

Mr. Green argues, however, that he was aggrieved, as the complainant to the Commission, by “the lack of procedural due process afforded” to him. This contention has no merit.

Only the judge has rights

A person who files a complaint against a judge, however, does not have a life, liberty, or property interest at stake when the Commission decides whether to pursue judicial discipline. Thus, a person filing a complaint with the Commission has no due process rights. Mr. Green was not entitled to due process, and his argument that he failed to receive it, therefore, is not a sufficient ground to find that he was aggrieved or suffered an injury.

We hold that, because the purpose of the judicial disciplinary system is to protect the public and maintain public confidence in the judiciary, not to vindicate any individual person’s interest, a person who files a complaint with the Commission has no standing to seek judicial review of the Commission’s resolution of the complaint. The circuit court properly dismissed both of Mr. Green’s complaints for lack of standing.

(Mike Frisch)

September 30, 2020 in Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, September 29, 2020

Judicial Intervention Draws Stayed Suspension

A decision of the Ohio Supreme Court is summarized by Dan Trevas

The Ohio Supreme Court today issued a fully stayed six-month suspension to Lucas County Common Pleas Court Judge Michael R. Goulding for interfering in a case assigned to another judge in order to do a favor for a friend.

In a per curiam opinion, the Supreme Court ruled that Judge Goulding violated three rules governing the conduct of Ohio judges, including abusing the prestige of his office to advance his personal or economic interests. The Court also noted the Board of Professional Conduct concluded that Judge Goulding self-reported his infractions only after it was clear that the county prosecutor’s office was aware of his interference.

Judge Goulding and the Office of Disciplinary Counsel, which investigated the matter, proposed that the Court adopt a public reprimand for the judge. Pointing to six similar cases involving judicial officers, the board noted the sanctions in past cases have ranged from a public reprimand to an actual six-month suspension. The Court adopted the board’s recommendation that Judge Goulding’s actions warranted a stayed suspension.

Chief Justice Maureen O’Connor and Justices Sharon L. Kennedy, Judith L. French, R. Patrick DeWine, and Melody J. Stewart joined the opinion. Justice Patrick F. Fischer did not participate in the case.

Justice Michael P. Donnelly wrote that he agreed with the bulk of  the Court majority’s conclusions, but would impose a public reprimand.

Judge Intervenes on Behalf of Friends
In February 2019, a Lucas County grand jury indicted a teenage boy, identified in court records as C.G., for three second-degree felony counts of illegal use of a minor in a nudity-oriented performance. On a Friday, C.G. was arrested and held without bail in the Lucas County jail.

C.G.’s case was assigned to Lucas County Common Pleas Court Judge Joseph McNamara, and C.G.’s arraignment hearing was scheduled for the following Tuesday. On Sunday, two days before the court date, Judge Goulding received a call from longtime friends who asked him to come to their home for an emergency.

Judge Goulding arrived to find his friend’s teen daughter had locked herself in her room following the arrest of her boyfriend -- C.G. Judge Goulding used his cell phone to call the Lucas County Pretrial Services Department, where an officer answering the call knew he was a judge. After confirming that C.G. was in custody, the judge asked the officer about the pending charges.

The officer informed the judge that C.G. was charged with several felonies, and that C.G. was also on probation for an aggravated-menacing conviction in Maumee Municipal Court.

Judge Goulding was told about the Tuesday arraignment date, and he learned the pretrial services department was recommending C.G. be released from jail on bond and with an order prohibiting him from having contact with the alleged victim, a minor girl who was not the daughter of Judge Goulding’s friends.

Judge Orders Suspect’s Release
Judge Goulding ordered the jail to immediately release C.G. on a recognizance bond with a no-contact order. While the judge was at the friends’ home, the daughter began speaking to C.G. on her cell phone, which she handed to Judge Goulding. The judge told C.G. he would be released to his parents in about an hour.

While the teen and her boyfriend talked on the phone, Judge Goulding sent a text message to an attorney he believed, and later confirmed, was representing C.G. He told the attorney he released C.G. on bond. While still at the friends’ home, the judge learned from his friend about the circumstances of the charges C.G. faced and that he had been expelled from two schools for drug-related behavior.

Judge Goulding took C.G.’s girlfriend’s phone and spoke directly to him. The judge learned more about the teen’s prior conviction and the current case. Those phone calls were recorded by the Lucas County jail’s phone system.

On the day of the scheduled arraignment, Judge Goulding left a message with Judge McNamara, informing him of the bond he had set for C.G. Judge Goulding did not inform C.G.’s attorney that he had engaged in an ex parte communication with C.G. where he learned information about the case, and he did not inform the prosecutor’s office that he had spoken with C.G.  or that he had C.G. released from jail.

Rule Infractions Discovered
While preparing for the case against C.G., an assistant county prosecutor listened to C.G.’s jail calls and recognized Judge Goulding’s voice. The prosecutor informed his supervisor and notified the judge he would be listed as a state’s witness in the case. Judge Goulding then realized his actions may have violated the Judicial Code of Conduct, and he self-reported his actions to the disciplinary counsel.

C.G. later pleaded guilty to four misdemeanor charges in exchange for the dismissal of the three felony charges. The disciplinary counsel and Judge Goulding stipulated that the judge’s communications with C.G. did not impact the outcome of the case.

In February 2020, the disciplinary counsel filed a complaint with the professional conduct board against Judge Goulding based on his actions regarding C.G. The parties stipulated, and the board agreed, that Judge Goulding violated the rule requiring a judge at all times to act in a manner that promotes independence, integrity, and impartiality, and that generally prohibits a judge from engaging in ex parte communications.

The parties sought to dismiss the allegation that Judge Goulding abused the prestige of his office, but the board concluded that he violated that rule. The board found that without the judge’s intervention, C.G. would not have been released from jail two days before his arraignment.

In recommending to the Court that Judge Goulding receive a six-month stayed suspension, the board noted that his conduct appeared to violate two other rules, which prohibit a judge from independently investigating the facts of a matter, and prohibiting “family, political, financial, or other interests or relationships to influence judicial conduct or judgment.”

The board reported to the Court that while Judge Goulding admitted to violating two rules, “he downplayed his offenses and failed to offer any plausible explanation for his misconduct.”

Judge Goulding testified during the disciplinary proceedings that he thought his initial conversation with C.G. was legally inconsequential, and that he gathered more information above and beyond what the family had requested about C.G.’s status in jail because he had second thoughts about releasing him on bond. He also said he issued C.G.’s release out of “habit” by setting bail in another judge’s case.

The board found the judge would not have self-reported his misconduct had the assistant prosecutor not informed the judge that he would be a potential witness in the case.

“On these facts, the board was not convinced that [Judge] Goulding appreciated the gravity and inappropriateness of his conduct,” the opinion stated.

The Court adopted the board’s recommendation that the judge receive a six-month suspension, stayed with the conditions that he complete an additional two hours of continuing legal education in the area of judicial ethics and not commit further misconduct. The Court also charged the judge with the costs of the disciplinary proceedings.

2020-0738Disciplinary Counsel v. GouldingSlip Opinion No. 2020-Ohio-4588.

(Mike Frisch)

September 29, 2020 in Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, September 23, 2020

Two Judges Resign In New York

The New York Commission on Judicial Conduct accepted the resignations of two judges

Family Court Judge and Acting Supreme Court Justice Michael L. Hanuszczak (Onondaga County) has resigned, after (1) being charged by the New York State Commission on Judicial Conduct with uninvited, unwelcome kissing and otherwise inappropriate behavior toward two female court staff, and (2) a hearing officer sustained the charges. Judge Hanuszczak resigned from office on September 21, 2020, agreeing never to seek or accept judicial office at any time in the future. The Commission accepted a stipulation to that effect signed by the judge and the Commission’s Administrator and closed its formal proceedings...

Conduct as to “Name 1”
o Grabbing her shoulders and kissing her twice without her consent;
o Asking if she “kn[e]w how to do a three-way” when she attempted to set up a
conference call;
o On multiple occasions while in court, telling her about his dating life;
o Asking if her husband was out of town and if she would like to meet for dinner to discuss the campaign; and
o Asking her repeatedly to assist on his campaign for Surrogate’s court when she had no interest in doing so.
 Conduct as to “Name 2”
o On two separate occasions kissing her without her consent;
o Telling her he would have been interested in dating her had he known she was single (upon hearing she was engaged to be married); and,
o Years later telling her he remained interested in dating her, and asking if she would be interested in dating him, while cautioning that any relationship would need to be discreet.

...Commission Administrator Robert H. Tembeckjian made the following statement.

“The relationship between judge and court staff is not equal. The power inherent in judicial office must not be exploited for personal purposes. Obviously, a judge should not initiate unwelcome kissing of court staff or propose ‘discreet’ dating to a subordinate. Had he not resigned, my office would have recommended Judge Hanuszczak’s removal for such disreputable behavior.”

Syracuse.com reported on the proceedings

The order is linked here. 

In the other matter

Ambrose P. Madden, a Justice of the Fenton Town Court, Broome County, resigned while under investigation by the New York State Commission on Judicial Conduct for allegedly creating a hostile work environment and conducting ex parte proceedings with juveniles from a local youth home, in the absence of their counsel, and threatening them with jail time. Judge Madden, who left office on August 16, 2020, 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, his attorney and the Commission’s Administrator and closed its investigation...

Commission Administrator Robert H. Tembeckjian made the following statement. “A judge must know better than to conduct proceedings and threaten juveniles with jail in the absence of their lawyers. A judge must also be patient, dignified and courteous with all who work or have business in the court. That Judge Madden chose to resign, permanently, rather than answer inquiries about such matters, speaks for itself.”

The order is linked here.

September 23, 2020 in Judicial Ethics and the Courts | Permalink | Comments (0)

Transparency Wins; Did Justice?

I was able to watch substantial portions of the recent Court of the Judiciary hearing in Oklahoma. 

The above styled trial commenced in the Court on the Judiciary, Trial Division on August 31 to September 18, 2020, except for Labor Day on September 7th, and on September 14th.

Since I did not hear all of the testimony, I do not feel qualified to opine on the result.

The good news is the transparency of the proceedings. As reported by The Oklahoman

The unusual trial is being livestreamed on YouTube from the Oklahoma Judicial Center, the home of the state Supreme Court and Court of Criminal Appeals. The building, just southeast of the Capitol, remains closed to the public because of the pandemic.

The livestream — involving multiple cameras angles and high-quality sound — has become a mini-hit. Viewership last week regularly exceeded 400 every day and at times topped 600.

The most upsetting testimony in the hearing that I witnessed came in the defense of the accused from Judge Aletia Timmons, the thrust of which was a suggestion that the process was a product of racist and sexist double standards applied to a new judge who was learning the job.

Non Doc reported

Timmons testimony became a scathing indictment of her judicial peers, accusing them of pettiness and spreading gossip.

“Before she could even get her feet wet, they‘ve picked on her in ways that are petty, ignorant, racist and completely outrageous. It has been tough to watch,” she said.

Timmons testified that other judges assigned to the criminal dockets maligned Coleman at the judge’s judicial conferences.

“As my grandma would say, some are so low they could sit on a Kleenex and swing their feet,” Timmons said. She did not identify the judges by name.

I was surprised when the panel deliberated and returned a verdict shortly after testimony and argument to announce an order removing the judge. 

There are several dissents rejecting removal from office as the remedy.

There is a written dissent by District Judge Wallace Coppege.

In particular he notes the lack of factual findings to explain the conclusions of law, notes the disagreements among panel members on the conclusions and sanction and calls the result

 grossly unfair to Judge Coleman in this case; to all future elected and/or appointed trial judges and to the Appellate Division of the Court of the Judiciary to be required to essentially guess what conduct the six (6) members of the majority found to be proven by clear and convincing evidence.

 (Mike Frisch)

September 23, 2020 in Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, September 22, 2020

Magistrate Disbarred

A conditional admission has led to a Colorado disbarment described on the web page of the Presiding Disciplinary Judge

Kamada violated several Rules of Professional Conduct and Judicial Conduct while serving first as a county magistrate and then as a district court judge. While Kamada served as a magistrate, he purchased marijuana from a friend on multiple occasions. He also looked up information on a third party’s conviction for the same friend. Over a group text chain, Kamada disclosed information about a former client and her case. He discussed with his friends several cases over which he presided, and he made disparaging remarks about a lawyer who appeared before him. Kamada also emailed his friends photographs of his work area that included a computer screen showing case numbers, litigants’ names, events, and document titles.

As a district court judge, Kamada discussed with his friends cases over which he presided, emailed photographs he took of parties and court documents, and attempted to look up case information for a friend. When Kamada reviewed a warrant request by the joint drug task force, the law enforcement officer noted that Kamada was connected to members of the warrant subject’s social media network. The officer took the warrant to the next judge on the on-call list. Kamada discussed the warrant with a friend, who then informed the warrant subject. The friend asked Kamada for updates on the investigation, and Kamada fabricated information in an attempt to convince his friend to avoid the warrant subject. Kamada pleaded guilty to the offense of obstruction of proceedings before a federal department or agency in violation of 18 U.S.C. § 1505 for his actions related to the warrant.

Greeley Tribune reported on the charges

In a video teleconference hearing Tuesday, Kamada explained he was the on-call judge in the evening hours of April 23, 2019, when an investigator asked him to review a search warrant for someone he knew and a mutual friend of his best friend, Geoffrey Chacon, who was hired in the summer of 2019 to serve as the assistant principal at Prairie Heights Middle School and worked as a teacher and coach in Greeley prior to that. Chacon resigned about a month after he was hired.

The subject of the warrant appears to have been Alberto “Beto” Loya, a well-known businessman and philanthropist.

Kamada said he recused himself from signing off on the warrant, due to his familiarity with Loya and mutual association with Chacon. Out of fear of the impacts to Chacon’s reputation, he warned Chacon to stay away from Loya, Kamada said Tuesday.

Kamada knew Loya since high school, and the two served together on the board of directors for the Weld County Latino Chamber of Commerce, according to a stipulation of facts in the plea agreement.

Kamada recused himself from the case after a task force officer pointed out to Kamada that he was friends with Loya on Facebook, a release from the U.S. Department of Justice states. Early the next morning, Kamada called Chacon and told him that law enforcement was “watching” Loya’s house, car and phone, according to the release. Kamada then told Chacon to “stay away” from Loya.

That disclosure prompted Chacon to repeat the warning to Loya. As a result, Chacon distanced himself from Loya and his associates and instructed an associate of Loya’s to correspond with Chacon using their work phones rather than their personal phones. Chacon pleaded guilty in November to destroying evidence in the investigation, specifically May 4 text messages between himself, Loya and Kamada.

Loya slowed down the pace of his operation, according to court records, and cleaned his house of evidence relating to drug activities.

Chacon later asked Kamada about the investigation through an online Xbox video game, which the two played multiple times per week. Kamada said he fabricated that the investigation was ongoing even though he had no further knowledge beyond the call about the search warrant.

Prior to the disclosure, on Jan. 27, 2019, Kamada and Chacon were texting about a fight Loya got into with another drug dealer, according to court records. Chacon told Kamada about the fight and said the second dealer “was all drunk n high on coke.”

Kamada responded that the second dealer “(n)eeds to grow up” and “(i)f he wants to play big boy stuff, then he needs to be a big boy,” court records state. Kamada began in his role as Weld District Court judge Jan. 1, 2019.

(Mike Frisch)

September 22, 2020 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, September 16, 2020

Alleged Violation Of Virus Shutdown Order Draws Judicial Misconduct Charges

The Ohio Disciplinary Counsel has filed charges against a judge who held hearings in contravention of the coronavirus rescheduling order

Respondent received the order on Friday, March 13, 2020; however, she failed to abide by its terms.

The proceedings held in the following week are recounted at length

That evening, Cleveland.com published an article accusing respondent of issuing arrest warrants for non-jail defendants who did not appear on March 16th and March 17th, despite the administrative judge’s order rescheduling such cases. The article, “Cleveland judge flouts court’s postponements amid coronavirus pandemic, issues warrants for no-shows,” also appeared on the front page of the Cleveland Plain Dealer the following morning.

Proceedings continued on the next day.

After recessing court, respondent agreed to an interview with Fox 8 News’s reporter, Peggy Gallek.

Alleged

During the interview, respondent falsely asserted that she had not issued any arrest warrants the previous two days.

The Ohio Supreme Court had disqualified the judge in a March 25 order

Regardless of her intentions, by continuing to hear cases after issuance of the municipal court’s administrative order, Judge Carr caused confusion and sent mixed messages to the public at a time when clarity and uniform application of the administrative order were necessary. Indeed, the judge may have incentivized parties to appear for their cases if they knew she was continuing to hold hearings, defeating the purpose of the administrative order. In addition, Judge Carr has failed to sufficiently respond to the allegation that she arbitrarily issued warrants authorizing the arrest of some defendants who failed to appear for their originally scheduled hearings, despite the rescheduling of those matters. If the allegation is true, her actions eroded the public’s confidence in the integrity of the judiciary and created at least the appearance of bias.

...the affidavit of disqualification is granted in part and denied in part. Judge Carr is disqualified from presiding over hearings in nonjail criminal and traffic cases during the pendency of the Cleveland Municipal Court’s March 13, 2020 administrative order or any orders extending the time frame of the original order. Mr. Stanton’s request for a blanket order disqualifying Judge Carr from all criminal and traffic cases is denied. Mr. Stanton’s emergency motion is denied as moot.

(Mike Frisch)

September 16, 2020 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Monday, September 14, 2020

Facebook Messages Alleged As Ex Parte Communications

An Ohio judge has been charged with ethics violations involving Facebook Messenger communications with a person he had friended after presiding over his criminal trial and divorce

Sometime prior to July 22, 2019, respondent and Keith became “friends” on Facebook. They remained friends on Facebook until August 25, 2020.

Between July 22, 2019 and December 19, 2019, Keith and respondent regularly communicated with each other using Facebook Messenger, a free mobile messaging app  developed by Facebook, Inc. for instant messaging and sharing of photos, videos, or audio recordings between Facebook friends.

In a pending criminal matter

On August 27, 2019, Keith sent respondent a message via Facebook Messenger. In that message, Keith told respondent that [defendant] Mendez had sold heroin to Keith’s daughter, and he requested that respondent not give Mendez a “bond he can make.”

Allegedly

At no time while respondent was presiding over Mendez’s case did respondent disclose to either party that he had received an ex parte communication from Keith concerning Mendez.

He and Keith allegedly communicated about post-divorce matters

On the same day, respondent replied to Keith’s message via Facebook Messenger and stated, “Yes he is! That’s funny. I’ll look for him and for sure talk to him if I see him. I like his attitude[.] 😊😊”

On September 6, 2019, Keith filed a pro se Motion for Change of Parenting Time in his divorce case over which respondent was presiding.

Between September 6, 2019 and September 30, 2019, Keith and respondent exchanged several private messages with each other via Facebook Messenger, including information pertinent to Keith’s Motion for Change of Parenting Time.

There are alleged communications concerning an order permitting Keith to attend his mother's funeral

On December 18, 2019 at 4:48 p.m., Keith sent a message to respondent via Facebook Messenger and asked, “Any word on what’s going to happen with funeral [?]”

On December 18, 2019 at 9:25 p.m., respondent replied to Keith via Facebook Messenger and stated, “A deputy will accompany you. No need for consent, no need for a hearing and the Sheriff is onboard.” Keith immediately replied and stated, “You sure[?] Thank you Bruce[.]”

Alleged

At no time while respondent was considering the Motion for Permission to Travel in Keith’s case did he disclose to Lear or the prosecutor’s office that he had spoken to Keith or that he had received and responded to multiple Facebook Messenger communications from Keith concerning the matter.

Finally, alleged communications concerning an accident between Keith and a charged defendant in a matter that the judge heard

At no time during the pendency of Fishburn’s criminal case did respondent disclose to Fishburn, Fishburn’s counsel, or the prosecutor that respondent had received multiple Facebook Messenger communications from Keith concerning Keith’s injuries and Fishburn’s criminal case.

(Mike Frisch)

September 14, 2020 in Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, September 10, 2020

Indicted Judge Disqualified

The Ohio Supreme Court has entered an order disqualifying a judge from all matters while under indictment.

Sua sponte, Jason D. Warner, Attorney Registration No. 0066451, disqualified from acting as a judge pursuant to Gov.Jud.R. III(6)(A). He shall remain disqualified while any and all indictments filed in the Marion County Court of Common Pleas are pending and until further order of this court.

The Columbus Dispatch reported yesterday

A Marion County judge and his wife have been indicted on felony charges for their role in a hit-skip crash that injured a man.

Marion residents Jason D. Warner, 50, and Julia M. Warner, 53, were indicted Wednesday. Jason Warner is a commons pleas judge elected in November 2018.

The Warners are accused of leaving the scene of a with another vehicle early on June 4 at Route 203 and Somerlot-Hoffman Road, according to a report by the Marion Post of the Ohio Highway Patrol. A 19-year-old Marion man was injured and was released from a hospital the next day.

Following are the charges outlined in the joint indictment: complicity to vehicular assault, a fourth-degree felony; complicity to vehicular assault, a third-degree felony; complicity to leaving the scene of an accident, a fourth-degree felony; and complicity to tampering with evidence, a third-degree felony.

The couple will be arraigned at 11 a.m. on Sept. 15 in Marion County Common Pleas Court.

In count three of the indictment, complicity to leaving the scene of an accident, prosecutors allege that the Warners “knew that the accident or collision resulted in serious physical harm” to the driver of the other vehicle.

Count four of the indictment, complicity to tampering with evidence, alleges that the Warners, “knowing that an official proceeding or investigation was in progress, or was about to be or likely to be instituted, altered, destroyed, concealed, or removed a record, document, or thing, with purpose to impair its value or availability as evidence in such proceeding or investigation.”

Summonses and certified copies of the indictment were issued for each of the Warners on Wednesday.

Margaret B. Tomaro, senior assistant attorney general from the Ohio Attorney General’s office, has been assigned as the special prosecutor in the case.

 

The Ohio Supreme Court assigned former Summit County Common Pleas Court Judge Patricia A. Cosgrove, effective July 14, 2020, to preside over the case.

Cosgrove served on the Summit County Common Pleas Court for 18 years, retiring in 2011. According to news reports, she has been assigned to numerous high-profile cases, including many involving elected officials.

According to the Ohio Highway Patrol report, the Warners’ vehicle struck the vehicle driven by the 19-year-old male around 12:04 a.m. on June 4 at the junction of Ohio 203 and Somerlot-Hoffman Road, causing it to veer off the roadway and hit a utility pole. He suffered a head injury, was trapped inside his vehicle, and had to be mechanically extricated from the vehicle.

According to the report, the Warners left the scene of the crash and contacted the Marion Post around 9:30 a.m. on June 4 to report their involvement.

Citing a conflict of interest in the case, Marion County Prosecutor Ray Grogan requested that Ohio Attorney General David Yost’s office assume responsibility for the investigation. Marion County Common Pleas Court Judge W.T. Edwards then issued the order for the Attorney General to take over the matter.

Judge Warner took a leave of absence from the court, effective Monday, Aug. 3. Judge W.T. Edwards, who serves as the administrative judge for common pleas court, said he was informed about the leave of absence by Warner’s secretary on Aug. 3.

Edwards said he has had no contact with Warner since being informed about the leave of absence and all of his attempts to reach Warner have been unsuccessful. Edwards noted that Warner did not specify the duration of the leave of absence.

(Mike Frisch)

September 10, 2020 in Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, September 9, 2020

Real Time Access To Judicial Misconduct Hearings

The web page of the Oklahoma Supreme Court is providing real time access to an ongoing judicial misconduct proceeding

Case No. CJTD-2020-1, The Supreme Court of the State of Oklahoma, Petitioner v. Kendra Coleman, Respondent.

The livestream for Wednesday can be viewed on Youtube.

On Monday, August 31, 2020, at 9:00 a.m., Trial in the above-referenced matter will commence in the Court on the Judiciary, Trial Division. Thereafter, proceedings are scheduled to commence at 8:30 a.m. each weekday (except Labor Day) until concluded.

The Oklahoma State Court Network (OSCN) website will provide a link to livestream the Court’s proceedings. The Oklahoma Judicial Center remains closed to the public, so public viewing of the proceedings is only available by watching the livestream feed. The link to the live-time feed will be posted on August 31 on the OSCN website approximately sixty minutes before the hearing begins.

Article 7A Section 2 of the Oklahoma Constitution sets forth the requirements for membership on the Trial and Appellate Divisions of the Court on the Judiciary. The trial division is made up of 8 district judges appointed by the Oklahoma Secretary of State and one active member appointed by the Oklahoma Bar Association. The Secretary of State maintains the list of members for both the Trial Division and the Appellate Division.

The nine members of the Trial Division are: Presiding Judge Rebecca Nightingale (District Judge,Tulsa) , Vice Presiding Judge Brad Heckenkemper (OBA member), and district judges Newburn (Comanche), Woodward (Garfield) , Kirkley (Wagoner) , Ashwood (Lincoln) , Coppedge (Marshall) , Balkman (Cleveland) and Pazzo (Rogers).

(Mike Frisch)

September 9, 2020 in Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, September 3, 2020

Judicial Misconduct Charges In Nevada

Allegations of judicial misconduct reported by the Las Vegas Review-Journal

A Clark County district judge and Family Court judge are facing charges from a state disciplinary board in separate ethics cases.

In one case, Family Court Judge William Potter, accused of leaving sexually inappropriate messages with another judge and court staff, faces possible punishment for the second time in three years.

Meanwhile, District Judge Kerry Earley was charged with violating judicial canons after the Nevada Commission on Judicial Discipline alleged that she cursed and yelled at courthouse employees.

Attempts to reach Potter and Earley on Wednesday were unsuccessful.

Potter, who took the bench in 2006, walked into Chief District Judge Linda Bell’s chambers in July 2019 when she was not there and left a patch with a note on her desk, according to allegations filed late last month by the discipline commission.

An image on the patch depicted a man who resembled Potter with “a ball gag in his mouth,” the allegations state.

Emblazoned on the patch were the words “Gag Order, Esquire,” the commission alleges. Next to the patch, Potter left a note that read: “Thinking of you, Billy.”

Potter reportedly also delivered a patch to each of Bell’s female co-workers, including her assistant, court recorder and clerk, and to a law clerk for Family Court Judge Linda Marquis.

“The depiction on the patch is commonly associated with sexual bondage, domination, fetish and fantasy,” the allegations state. “Gags also have connotations of punishment, control, humiliation, and helplessness. The female co-workers found the patch to be sexual in nature and inappropriate in the workplace. Judge Bell found the patch and the attached note to be highly inappropriate and offensive.”

The commission alleges multiple violations of the state’s Code of Judicial Conduct.

It’s at least the second time Potter has faced the panel.

In 2017, he was suspended for two months without pay after he ordered a lawyer handcuffed in court, commented on cases during his re-election bid and lashed out during his own disciplinary hearing.

In another set of charges filed last month, the commission alleges that District Judge Kerry Earley “screamed or yelled at the chief judge” in March 2018 after Earley’s assistant was asked to remove flyers posted in elevators at the Regional Justice Center announcing a retirement party for her husband.

Later that year, the charges state, after the chief judge told Earley she would be assigned strictly to civil cases, she was “very upset and yelling.”

Earley, who took the bench in 1999 and is not seeking re-election, also is accused of addressing her assistant in “a loud, offensive, profane manner in the presence of others,” and raising her voice and swearing several times among courthouse staff between 2015 and 2019.

Contact David Ferrara at dferrara@reviewjournal.com or 702-380-1039. Follow @randompoker on Twitter.

The formal charges in the Earley matter is linked here. The Potter charges may be found here. (Mike Frisch)

September 3, 2020 in Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, September 1, 2020

The Ethics Of Love Offerings

The South Carolina Advisory Committee on Standards of Judicial Conduct gives its blessing to a Magistrate's participation in a public dialogue

A Magistrate Court Judge is enrolled in a Ph.D. program in theology and is writing a dissertation on a famous theologian and philosopher. Out of these studies, a topic has arisen that has led to a formal public dialogue/debate opportunity that the Magistrate will participate in with three other theologians. The debate will take place at a local church. The host church desires to have a “love offering” during the intermission of the debate to raise funds for compassion and mission work to poor ministries and people in India and Asia. The Magistrate would not be personally seeking, promoting, or soliciting any donations, nor would the Magistrate physically collect any of the donations. The Master of Ceremonies and elders from the host church would speak about the offering and take up the collection during the intermission of the 3-hour debate. The Magistrate could leave the stage during this intermission if necessary. The Magistrate inquires as to the propriety of participating in a debate where the host site seeks an offering.

Conclusion

A Magistrate Court Judge may participate in a formal theological debate where the host church will seek an offering to aid ministries and people in India/Asia, provided that the Magistrate does not personally seek or collect any funds and provided that the Magistrate does not remain on the stage during the offering.

(Mike Frisch)

September 1, 2020 in Judicial Ethics and the Courts | Permalink | Comments (0)

Monday, August 31, 2020

Temper Draws Censure

A former Queens (now Nassau) County Supreme Court Justice drew a censure from the New York Commission on Judicial Conduct for repeated discourtesy

Respondent admitted that she repeatedly yelled at court personnel. She demeaned court employees including her confidential secretary, a principal law clerk and an administrative aide. In one instance, she repeatedly screamed at a courthouse facility supervisor, “You treat me like shit.” Respondent admitted that she frequently yelled at her former confidential secretary and treated her in a condescending and discourteous manner.

Respondent also failed to “cooperate with other judges and court officials in the administration of court business” as §100.3(C)(1) of the Rules required. In contravention of OCA policy, she refused to return her old laptop after receiving a new one and yelled at the court’s technical manager who tried to arrange for the return of the old laptop. In another instance, after a motion that she had inappropriately referred to another judge was returned to her, respondent insisted to the administrative judge’s law clerk in a raised voice that she would not decide the motion.

In addition to her inappropriate conduct toward court personnel, respondent also admitted that on three occasions she yelled at counsel who were appearing before her. In one instance, respondent told the parties to enter into a stipulation and when one attorney indicated that there was nothing to which he could stipulate, she yelled at him, “Get out of my courtroom. Get out. Get out.” Respondent acknowledged that she continued to yell at the attorney while he gathered his things and left the courtroom. Such conduct was unbecoming a judge.

Respondent’s pattern of intemperate and abusive behavior was improper and severely undermined confidence in the judiciary.

Censure with cautionary language

We expect that respondent has learned from this experience and in the future will act in strict accordance with her obligation to abide by all the Rules Governing Judicial Conduct.

(Mike Frisch )

August 31, 2020 in Judicial Ethics and the Courts | Permalink | Comments (0)

Going My Way?

The New York Commission on Judicial Conduct has censured a village court justice

The charges

Charge I of the Formal Written Complaint alleged that on April 11, 2017, after presiding over the arraignment of E B in the Ellenville Village Court, respondent offered to give, and then gave, Mr. B a ride to Mr. B ’s residence. Charge I further alleged that on April 18, 2017, respondent presided over and disposed of Mr. B ’ case, without disclosing to the prosecution that he had given Mr. B a ride home after the arraignment and without offering to recuse himself. Charge II of the Formal Written Complaint alleged that in October and November 2018, in People v. Laquisha Brown and People v. Aljenia Douglas, respondent failed to advise the unrepresented defendants of the right to have counsel assigned by the court and otherwise failed to comply with requirements of the Criminal Procedure Law in connection with those matters. Charge III of the Formal Written Complaint alleged that on August 7, 2018, respondent summarily directed that a man be removed from the courtroom based on the man’s attire without giving him the opportunity to be heard.

The ride came after a grand larceny arraignment during which Mr. B disclosed that he was a professional musician

After the arraignment, while still at the court, respondent engaged Mr. B in a conversation about music and the musicians with whom Mr. B had performed. Respondent then offered to give Mr. B a ride to his residence, which Mr. B accepted. Respondent drove Mr. B to his residence in the Village of Wurtsboro, Sullivan County, which was on respondent’s way to Middletown in Orange County, where he planned to go shopping. Respondent and Mr. B continued to converse throughout the car ride, which lasted approximately 15 minutes.

The attire incident

respondent summarily directed the removal of a man from the courtroom for wearing a sleeveless t-shirt, without giving the man an opportunity to be heard as to his attire or ascertaining his purpose for attending court, and notwithstanding Section 4 of the Judiciary Law, which provides that the “sittings of every court within this state shall be public, and every citizen may freely attend the same.”

Sanction

In accepting the jointly recommended sanction of censure, we have taken into consideration that respondent has admitted that his conduct warrants public discipline, that his failures to comply with the Criminal Procedure Law appear to have been isolated incidents and that he has taken corrective action by appointing a public defender for unrepresented defendants at arraignment and by taking steps to ensure that defendants understand the consequences of proceeding without counsel. We trust that respondent has learned from this experience and in the future will act in accordance with his obligation to follow constitutional and statutory mandates and abide by the Rules Governing Judicial Conduct.

Respondent has been a judge since 1993. (Mike Frisch)

August 31, 2020 in Judicial Ethics and the Courts | Permalink | Comments (0)