Monday, February 18, 2019

The Tickfaw Area

The Louisiana Supreme Court has ordered judicial disqualification

IT IS ORDERED, ADJUDGED AND DECREED that Justice of the Peace Terri M. Crosby, Ward 6, Tangipahoa Parish, State of Louisiana, be and she hereby is disqualified from exercising any judicial function during the pendency of further proceedings in this matter, pursuant to La. Const. art. V, § 25(C) and Supreme Court Rule XXIII, § 27. This order shall be effective immediately.

WBRZ 2 reported last December

 A Tangipahoa Parish justice of the peace was indicted this week on charges related to allegations she and another woman tried to illegally block an elderly woman's family from their inheritance upon the woman's death. 

In all, Terri Crosby, the justice of the peace in the Tickfaw area, was indicted on four different charges. When reached by phone Wednesday, Crosby refused to discuss the charges or the situation surrounding the allegations.

Crosby maintained she was never questioned and hasn’t had “so much as a speeding ticket” before the grand jury in Tangipahoa Parish indicted her Tuesday.

The WBRZ Investigative Unit learned Cosby faces a felony theft over $25,000 charge, cruelty to the infirmed, exploitation of the infirmed and one count of money laundering.

Crosby refused to elaborate when reached on the phone and referenced a prepared statement she gave to the Hammond newspaper: "This indictment has absolutely nothing— zero — to do with my duties as an elected justice of the peace. I am completely innocent of any wrongdoing.”

In the statement, Crosby said the criminal indictment comes after a civil issue, but she refused to explain herself.

She continued to complain about not being given an opportunity to be questioned ahead of a criminal indictment.

“I have never ever been asked one question by any law enforcement agency until the grand jury was set,” she wrote. “This has taken a toll on me and my family, especially this time of year.”

But, the state attorney general said the allegations are especially concerning.  Authorities said Crosby transferred property and finances of an 87-year-old woman with dementia into her control to claim ownership when the woman died.  Doing so would deny the victim's family the inheritance, a spokesperson for Louisiana Attorney Jeff Landry told WBRZ. 

The attorney general's office became involved when the district attorney in Tangipahoa Parish recused himself.

"...Elder fraud is an unlawful and immoral act and our office is committed to finding those who take advantage of our citizens," Landry said in a statement released to WBRZ.

Crosby’s attorney did not answer calls Wednesday.

Regina Raiford was also indicted in the case, the attorney general's office revealed. 

(Mike Frisch)

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

Thursday, February 14, 2019

No Empty Nest

A recent opinion from the Florida Judicial Ethics Advisory Committee

ISSUE

Whether a judge may allow an adult child living in the judge's home to be employed part-time by a local criminal defense attorney.

 

ANSWER: Yes.

FACTS

The inquiring judge's eighteen-year-old child, who is a senior in high school, has been offered a short-term, part-time position with a criminal defense attorney who practices in the same county as the inquiring judge. The precise nature of the work is unspecified, but the inquiring judge informs us that it will likely be administrative or clerical. Moreover, the hiring attorney has indicated to the inquiring judge that the child would not be allowed to work in any way on any cases that the judge presides over or attend court when the judge is presiding.

Reason

The commentary to Canon 3E(1) further states:

[A] judge is disqualified whenever the judge's impartiality might reasonably be questioned, regardless of whether any of the specific rules in Section 3E(1) apply. . . . A judge should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification. The fact that the judge conveys this information does not automatically require the judge to be disqualified upon a request by either party, but the issue should be resolved on a case-by-case basis.

"[I]ssues of disqualification involving law firms employing relatives of a judge should be resolved on a case-by-case basis with careful consideration given to the relationship between the relative and the law firm." Fla. JEAC Op. 07-16. Here, the short-term, part-time, administrative position described by the inquiring judge would not appear to reflect any more than a de minimis interest in the firm and any proceedings involving the firm. And the inquiring judge has indicated that the child's employment will not entail any participation at all in cases before the inquiring judge. Accordingly, disqualification would not automatically be triggered unless the judge's impartiality might otherwise be reasonably questioned. See Fla. JEAC Ops. 07-1607-1102-15. However, the inquiring judge should remain vigilant to the possibility that the child might participate indirectly in cases over which the judge is presiding. As we stated in Fla. JEAC Op. 07-11, "disclosure is not necessary unless the judge believes that the judge's impartiality might reasonably be questioned. . . . This would appear to be the case only if" the judge's relative "was directly or indirectly involved" in a case pending before the judge. See also Fla. JEAC Op. 07-1612-02.

(Mike Frisch)

February 14, 2019 in Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, February 13, 2019

No Pulpit For A Bully

A former judge has been disbarred by the New York Appellate Division for the Second Judicial Department, which concluded that his judicial misconduct warranted his removal from the legal profession. 

Charge one alleges that the respondent, a former justice, inter alia, of the Village Court of the Village of Spring Valley, was removed from the bench, based on the factual findings made by the Commission, which were sustained by the New York Court of Appeals, that the respondent engaged in judicial misconduct, and that by virtue of that judicial misconduct, the respondent engaged in conduct prejudicial to the administration of justice, in violation of rule 8.4(d) of the Rules of Professional Conduct (22 NYCRR 1200.0).

By per curiam opinion and order dated October 20, 2016, the Court of Appeals sustained the Commission’s factual determinations and accepted its recommendation that the respondent be removed from the bench. The Court of Appeals held:

“The record reflects that, among other things, [the respondent] used a sanction—a tool meant to ‘shield’ from frivolous conduct—as a ‘sword’ to punish a legal services organization for a perceived slight in an inexcusable and patently improper way. The record is also replete with instances in which [the respondent] used his office and standing as a platform from which to bully and to intimidate. To that end, it is undisputed that [the respondent] engaged in ethnic smearing and name-calling and repeatedly displayed poor temperament—perhaps most significantly, by engaging in a physical altercation with a student worker.” “Those actions are representative of an even more serious problem. [The respondent]—in what allegedly was a grossly misguided attempt to motivate—repeatedly threatened to hold various officials and employees of the Village of Spring Valley in contempt without cause or process. Those threats ‘exceeded all measure of acceptable judicial conduct’ (Matter of Blackburne [State Commn. on Jud. Conduct, 7 NY3d 213, 221 [2006]), and we are particularly troubled by the testimony of one court officer, who suggested that
[the respondent’s] threats were so common that they became ‘a joke.’ The matter may have been a laughing one to that officer, but it was not to others.” “Significantly, too, [the respondent’s] hectoring extended beyond the courthouse. In what ostensibly was an attempt to undermine a former co judge and an apparent political adversary, [the respondent] willfully injected himself into the political process involving the election of an office other than his own. All of the foregoing actions reflect a pattern of calculated misconduct that militates against [the respondent’s] assertion that the misbehavior complained of will not be repeated if he is allowed to remain on the bench. [The respondent’s] misconduct apparently was tempered only by the intervention of the Commission, and at the hearing held with respect to this matter he appeared unrepentant and evasive, testifying falsely on at least two occasions in an attempt to minimize his misconduct—all of which renders suspect his guarantees of better behavior” (Matter of Simon [State Commn. on Jud. Conduct], 28 NY3d at 39-40 [citation omitted]).

Sanction

Based on the findings of the Court of Appeals that the respondent “used his office and standing as a platform from which to bully and to intimidate, . . . engaged in ethnic smearing and name-calling and repeatedly displayed poor temperament—perhaps most significantly, by engaging in a physical altercation with a student worker, . . . repeatedly threatened to hold various officials and employees of the Village of Spring Valley in contempt without cause or process, . . . [and] injected himself into the political process involving the election of an office other than his own” (id. at 39),—misconduct qualifying as “truly egregious” (id. [internal quotation marks omitted]), we find that a disbarment is warranted (see Matter of Mogil, 250 AD2d 343). Most disturbing, notwithstanding the passage of time, the respondent continues to lack insight into the effect of his behavior, and continues to fail to recognize the inappropriateness of his actions or attitudes. The respondent’s misconduct, inappropriate and unacceptable as a judge, is equally inappropriate and unacceptable as an attorney and counselor-at-law.

(Mike Frisch)

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

Tuesday, February 12, 2019

Stayed Judicial Suspension

The Ohio Supreme Court imposed a fully-stayed one-year suspension of a judge who previously had been reprimanded for criticizing in open court a jury's not guilty verdict.

In a complaint certified to the Board of Professional Conduct on December 4, 2017, relator, disciplinary counsel, alleged that Salerno’s conduct in two criminal cases she presided over violated the Code of Judicial Conduct. The parties stipulated to the admission of facts, aggravating and mitigating factors, and 11 exhibits. Salerno agreed that she failed to act in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary and avoids the appearance of impropriety; failed to uphold and apply the law and perform the duties of her judicial office in a fair and impartial manner; and engaged in ex parte communications.

In a felony case

Based on [defense counsel] Brehm’s ex parte communications, Salerno reconsidered Mendoza’s bail and then telephoned the clerk’s office and lowered the amount from $350,000 to $85,000. Mendoza posted bond and was released from custody later that day. But Salerno never informed the prosecutor of Brehm’s ex parte communications or the fact that she had reduced Mendoza’s bond; instead, the prosecutor learned of Mendoza’s release through the media.

In a traffic case

At her disciplinary hearing, Salerno testified that after her efforts to assist the parties in reaching a plea deal proved unsuccessful, she tried the improper-turn case. She explained that she attempted to achieve what she believed was a “fair” result by finding Toe guilty of that offense, in the hope that the prosecutor would then agree to dismiss the slow-speed case. She candidly admitted that she became frustrated when the prosecutor—whom she described as “brand new,” “overzealous,” “abrupt,” and “rude”—rejected her proposed resolution and that that frustration probably led her to change her guilty finding in Toe’s improper turn case. Noting that there was no dispute that Salerno’s frustration and loss of her temper changed the outcome of that case, the board agreed that her conduct violated Jud.Cond.R. 1.2 and 2.2 (requiring a judge to uphold and apply the law and to perform all duties of the judicial office fairly and impartially).

Sanction

the board concluded that the appropriate sanction for Salerno’s misconduct is a one-year suspension, stayed in its entirety on the conditions that she (1) complete a minimum of six hours of CLE focused on judicial ethics that includes training specifically related to proper judicial demeanor, civility, and professionalism, in addition to the CLE requirements of Gov.Bar R. X and Gov.Jud.R. IV, (2) engage in no further misconduct, and (3) pay the costs of this proceeding. We agree.

(Mike Frisch)

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

Wednesday, February 6, 2019

Ex Parte Conversation Did Not Taint Judge

The Minnesota Supreme Court affirmed a murder conviction notwithstanding an ex parte communication between the judge and defense counsel

Immediately before opening statements, an ex parte conversation occurred between Mouelle’s trial counsel ("Counsel") and the district court judge in chambers in the presence of the court reporter. During the conversation, Counsel informed the court that if Mouelle chose to testify, Counsel was "going to have to . . . do as well as [he could] under Whiteside." Counsel also told the court that he and Mouelle could not agree on whether Counsel should give an opening statement before the State presented its evidence. In describing the disagreement, Counsel quoted parts of a conversation that he had with Mouelle. Based on the ongoing disagreement, Counsel explained that he would request a short recess after the prosecutor’s opening statement. The judge said, "I’m not going to comment any further about your conversations with your client as they are privileged. We will take a recess after the prosecution’s opening statement . . . and you can let me know if you’re ready."

The State gave its opening statement and, as promised, the court took a brief recess. Counsel then gave an opening statement. After the State rested its case, Mouelle chose to testify. Counsel presented Mouelle’s testimony in the traditional question-and-answer format.

Not reversible error

we conclude that an objective, unbiased layperson with full knowledge of the facts and circumstances would not question the district court’s impartiality. After the ex parte conversation ended, Counsel’s concerns were never again mentioned during the remainder of the jury trial. Critically, the jury—the fact finder here— was never exposed to the concerns about Mouelle’s testimony that Counsel raised during the ex parte conversation.5 Moreover, Counsel’s decision to present Mouelle’s testimony in the usual question-and-answer format suggests that Counsel’s Whiteside concerns, as well as his disagreement with Mouelle, had been resolved before Mouelle testified. Certainly nothing in the manner that Mouelle’s testimony was presented suggested to the jury that anything was amiss. And, as discussed in more detail below, the record does not reflect any behavior by the district court that would lead a reasonable examiner, with full knowledge of the facts and circumstances, to question the judge’s impartiality. Consequently, we conclude that Mouelle failed to establish that the Code of Judicial Conduct required the district court judge to recuse herself. Because Mouelle failed to show even the appearance of partiality, we hold that no error occurred, structural or otherwise, when the district court judge presided over his jury trial.

Nix v. Whiteside, of course, is a United States Supreme Court decision. (Mike Frisch)

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

Wednesday, January 30, 2019

As Ill Will Fades

Must an elected judge be forever recused from presiding over cases litigated by his erstwhile opponent and the loser's law firm?

Nope, according to the Florida Judicial Ethics Advisory Committee

It being clear that disqualification is required during a campaign, the question then becomes the length of time after the election for which disqualification continues to be required. The law presumes that, after an election is over and a reasonable period of time has passed, a judge would not harbor such ill will that it would prevent the judge from impartially considering cases presented by the former opponent. See City of Lakeland v. Vocelle, 656 So. 2d 612 (Fla. 1st DCA 1995); McDermott v. Grossman, 429 So. 2d 393 (Fla. 3d DCA 1983). Even though no personal animosity may exist, this committee, in JEAC Op. 84-23, has suggested that it would be appropriate for a judge to disqualify himself “for a reasonable period of time, perhaps two years, until you believe that, considering all the circumstances of which you are more aware than we on the committee, your impartiality cannot reasonably be questioned.”

The committee continues to feel that, while a two-year disqualification period should not be adopted as a bright-line rule due to the many varying circumstances which may be involved, two years would normally allow a sufficient passage of time to allay any lingering concern that a judge might either “rule too harshly, or ‘bend over backwards’ to rule favorably in a case involving a former opponent.” See JEAC Op. 84-23.

In the present case, where four years have passed since the election, the judge should consider whether any particular circumstances exist that could cause either the judge or the litigants to reasonably question the judge’s ability to rule impartially. If no such circumstances exist, it would be appropriate for the judge to rescind the earlier blanket disqualification order and to consider any further motions for disqualification made by a former election opponent or the opponent’s law partner on a case-by-case basis in order to determine whether specific facts are alleged which would warrant disqualification.

The committee further suggests that judges faced with similar issues in the future consider the procedures discussed in Holt v. Sheehan, 122 So. 3d 970 (Fla. 2d DCA 2013) and the comments made by the courts in Ginsberg v. Holt, 86 So. 2d 650 (Fla. 1956) and R.M.C. v. D.C., 77 So. 3d 234 (Fla. 1st DCA 2012) concerning the use of blanket orders of disqualification.

Facts

The inquiring judge faced a contested judicial election in 2014. After the judge was elected, the judge entered an order in January 2015 disqualifying the judge from hearing all cases in which the campaign opponent or law partner were involved. The order was entered almost four years prior to the judge’s inquiry to this committee, but contains no expiration date.

The judge was recently assigned to a case in which the judge's former campaign opponent represents one of the parties. The former opponent filed a copy of the disqualification order and has announced his intention to seek disqualification of the judge, based on the 2015 order.

The judge requests an opinion advising whether a judge must forever disqualify himself or herself from cases involving a former campaign opponent or opponent’s partners or if it is appropriate to now rescind the order of disqualification entered by the judge soon after the election.

(Mike Frisch )

 

January 30, 2019 in Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, January 23, 2019

Ethics Of Sitting Judge Seeking TV Judge Gig

A recent opinion of the Florida Judicial Ethics Advisory Committee

Opinion Number: 2019-02
Date of Issue: January 14, 2019

ISSUES

1. May a sitting judge film a pilot for a law-related television show?

ANSWER: Yes, as long as doing so does not cast reasonable doubt on the judge’s capacity to act impartially, demean the judicial office, or interfere with the proper performance of judicial duties.

2. May a sitting judge participate in the taping of a television pilot if the same is being filmed in another state, and accept compensation and travel reimbursement?

ANSWER: Yes, keeping in mind annual ethics disclosure requirements of compensation and/or gifts received by sitting judges.

3. May a sitting judge participate as the television judge and remain on the bench if an offer is extended by the producers of the television show?

ANSWER: No.

FACTS

The inquiring judge has been invited to audition for a television pilot. The proposed television show will feature a judge who presides over pro se civil cases. The litigants agree to have their small claims cases resolved by the television show’s presiding judge. The pilot and series will be taped and produced outside of Florida. The pilot will only be viewed by television executives and not made public. Auditioning for the one pilot would not contractually bind the inquiring judge. An offer of compensation and reimbursement for travel expenses for filming the pilot was extended. If, after reviewing the pilot, the television executives extend an offer to the inquiring judge, this would open the door for further negotiations, including compensation arrangements with the producer of the show. The inquiring judge asks whether he/she can audition for the pilot, accept payment and travel reimbursement; and if offered the television judge role, whether he/she may also remain on the judicial bench.

After a lengthy discussion

On the questions related to the television pilot, the Committee finds that a one-time, private audition outside of Florida and receipt of related compensation and reimbursement for travel expenses would not be prohibited. The Committee recommends however, the following if the inquiring judge elects to film the pilot: 1) to carefully consider the eight questions above as events unfold with producer of the show; 2) at all times conduct herself/himself so as to not demean the judicial office or cast reasonable doubt on her/his capacity to act impartially; 3) schedule the pilot on a week-end or when it will not adversely impact or conflict with the judge’s docket or impose on other colleagues to avoid interference with the proper performance of judicial duties; and 4) to comply with annual ethics disclosure requirements of compensation and/or gifts received by sitting judges. Of course, pursuant to Canon 1, the inquiring judge must at all times maintain high standards of conduct so that the integrity of the judiciary is preserved.

If the producer of the show extends an offer, the Florida Code of Judicial Conduct would prevent the inquiring judge from entering into the proposed arrangement for compensation, while also serving as a sitting judge. The proposed arrangement would lend judicial prestige to the commercial interests of the producer in violation of Canon 2B; the activity could involve improper public comment upon a pending or impending proceeding in violation of Canon 3B; and the activity would cast reasonable doubt on the judge’s capacity to act impartially as a judge, demean the judicial office, and interfere with the proper performance of judicial duties in violation of Canons 4 and 5.

(Mike Frisch)

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

Durst Surrogate Recusal Rejected

A decision yesterday of the New York Appellate Division for the First Judicial Department

Decree, Surrogate's Court, New York County (Nora S. Anderson, S.), entered on or about October 4, 2017, insofar as it denied petitioner's application for the recusal of Surrogate Anderson, directed that "Petitioner's Personal Representative" pay the fees of Charles Capetanakis, Esq., the guardian ad litem (GAL), and denied petitioner's application for reimbursement by the GAL of her attorneys' fees and expenses, unanimously modified, on the law, to the extent of remanding the matter to the Surrogate for an explanation of her reasons for the amount of the GAL fee award and directing that the GAL's fees be paid by the Estate of Kathleen Durst, and otherwise affirmed, without costs.

Petitioner failed to demonstrate that Surrogate Anderson improvidently exercised her discretion in refusing to recuse herself (see Wong v 2669 Owners Ltd., 126 AD3d 451 [1st Dept 2015]). As the Surrogate found, 22 NYCRR 151.1 does not require her recusal based on contributions made by the GAL's wife or law firm to the Surrogate's 2008 campaign. Moreover, there is no evidence that the contributions played any role in her determinations. There is also no evidence that, at the time the GAL was appointed, the Surrogate was aware of the relationship between his firm and the firm of one of respondent's attorneys, Steven I. Holm. In any event, the relationship was too attenuated to demonstrate that the GAL breached his fiduciary duty to Kathleen Durst in connection with the preparation of his report or recommendation regarding the date of her death.

On the current record, we cannot determine whether the amount of the fee the Surrogate awarded to the GAL was "reasonable compensation" (SCPA 405[1]). The Surrogate has the sole discretion to award the GAL "reasonable compensation for his services" (Matter of Burk, 6 AD2d 429, 430 [1st Dept 1958]). This determination is governed by several criteria, including "the nature and extent of the services, the actual time spent, the necessity therefor, the nature of the issues involved, the professional standing of counsel, and the results achieved" (id.). The Surrogate "must provide a concise but clear explanation of [her] reasons for the fee award, or lack thereof" (Matter of Moriarty, 119 AD3d 445, 445 [1st Dept 2014] [internal quotation marks omitted]; see also Matter of Hultay [Ronald P.S.], 136 AD3d 572, 573 [1st Dept 2016] [holding that "proper appellate review" cannot take place if the court "failed to give a reason" for its fee award]).

Here, the Surrogate failed to provide her reasoning for the amount of the fee she awarded to the GAL. As a result, there is an insufficient record for appellate review. Accordingly, the matter is remanded to the Surrogate for a "concise but clear" explanation of her reasons for the amount of the fee award. The Surrogate's explanation should discuss the factors she considered when determining the amount that she awarded to the GAL.

Finally, without a showing of "good cause," or indeed a discussion of the issue (see SCPA 405[1]), the Surrogate improperly directed that the GAL's fee be paid by petitioner's personal representative, rather than by the Estate of Kathleen Durst, which benefitted from the appointment. The appointment of the GAL did not result from any conduct of petitioner or her personal representative.

(Mike Frisch)

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

Tuesday, January 15, 2019

Van Delay Industries

The New York Commission on Judicial Conduct admonished a Judge of the New York City Civil Court and an Acting Justice of the Supreme Court, 12th Judicial District, Bronx County

The Formal Written Complaint alleged that in August 2015 after respondent’s vehicle struck a police van, respondent asserted her judicial office to advance her private interests, pressured police officers not to complete an accident report and threatened a police officer who completed the report.

Sanction

In determining the appropriate sanction for respondent’s violation of the above-cited ethical standards, we reject respondent’s argument that public discipline is unwarranted because the "private interest" she was seeking to further during the incident was relatively minor. Although the police report itself may have been inconsequential to respondent except for the resulting delay, her desire to be allowed to leave the accident scene more quickly was clearly important enough to her to warrant invoking her judicial status repeatedly at each stage of her interactions with the police, in violation of Rule 100.2(C). In view of such behavior and the totality of the circumstances as set forth above, we conclude that a public admonition is required. In imposing this sanction, we remind every judge of the obligation to abide by this important ethical mandate

(Mike Frisch)

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

Friday, January 11, 2019

Ex-Judge Goes To Prison For "Violent Acts of BDSM"

Alexandra Mester of The Toledo Blade reported last November

 A former Monroe County district judge fidgeted with his fingers and twisted his wedding ring as officials read graphic victim-impact statements from several young women describing how he brutally whipped, beat, and electrocuted them for sexual gratification.

Jarod Calkins, 41, of Carleton, Mich., was sentenced Thursday in Monroe County Circuit Court to prison, with no alternative programs allowed, after pleading guilty in September to four felony counts of misconduct in office. Washtenaw County Circuit Court Judge Archie Brown heard the case after Monroe County judges recused themselves.

“If there ever comes a time when it’s easy to put somebody in a cage, then you’re in the wrong line of business,” Judge Brown told Calkins. “I’m doing that today, and you know that, Mr. Calkins.”

He sentenced Calkins to one to five years for each count, to be served concurrently. He must also complete a sex-offender treatment program and pay court fees and costs. He will not have to register as a sex offender upon his release.

WATCH: Judge Archie Brown addresses Jarod Calkins during sentencing

Andrea Bitely, spokesman for the Michigan Attorney General’s Office that tried the case, said Calkins is believed to be the first Michigan judge to go to prison. Following sentencing, the state bar will review his law license.

“When you’re a person in a position of power and you choose to use that power to the detriment of others, there are consequences,” she said. “Mr. Calkins is now aware of those consequences.”

According to a criminal complaint, Calkins used the alias Michael Collins on the dating app Tinder, dating website OkCupid, on Facebook, and other places online to meet women. He told them he wanted to be their “sugar daddy” and said he would provide gifts and money in exchange for sex.

Calkins resigned as a judge in April after he was initially charged with one felony count of transporting a person for the purposes of prostitution as well as four misdemeanor counts of hiring women for the purpose of prostitution following an investigation by the Michigan State Police. The investigation began in 2017 after state police were told of “prostitution-related activities” at a Monroe Township hotel, according to a news release.

In 2016, Calkins gave four women ages 19 to 22 $50 to $200 cash each encounter for several meetings over the course of a few months. He perpetrated violent acts of BDSM — bondage, dominance, sadism, and masochism — that sometimes ignored the victims’ boundaries and protests, according to the complaint.

Defense attorney William Godfroy argued the encounters were consensual and the victims knew of Calkins’ intent to engage in BDSM. Michael Frezza, assistant attorney general, said the women consented only to what they believed would be playful sexual experimentation and withdrew consent when things escalated.

Three of the victims provided detailed written statements while the fourth told officials she could not bear to relive what happened. The women said they were seeking a caring relationship, but Calkins was not interested beyond sex.

WATCH: Jarod Calkins addresses the court

The three described similar encounters in which they said Calkins used varying restraints to bind them in often painful positions so they were unable to move or resist, severely whipped and beat them with multiple objects, choked them, aggressively used sex toys on them, and electrocuted them.

“The only way I can describe this experience is torture,” one victim wrote, adding she has nerve damage after being electrocuted through her genitals. “He was dehumanizing me, treating me like a punching bag, like his property that he could do whatever he wanted to. I was just a sexual object to him that he possessed that couldn’t say no. I felt like his personal sex slave.”

Victims said Calkins wanted to hurt them, enjoyed making them cry, and liked to see the marks he left on their bodies and how their bruises changed over time. They said they were afraid of being hurt even more if they didn’t comply, sometimes afraid for their lives.

The women said they tried to refuse Calkins’ money, but he placed it in their purses or they accepted it out of fear.

Calkins apologized to the women, his family and friends, and the community that elected him, saying he was “in a very dark place” and “attempting to fill an emotional void” at the time. He said he has been in therapy for 2 1/2 years.

“I stand here before you today in a much different place than 30 months ago,” he told Judge Brown. “I am not the same man.”

Judge Brown said public officials are held to a higher standard.

“You took the same oath I did, both as a lawyer and as a judge, and that was the duty to serve the public and not misuse it,” Judge Brown said.

First Published November 29, 2018, 9:48am

The felony complaint may be found here. 

January 11, 2019 in Judicial Ethics and the Courts | Permalink | Comments (0)

Friday, December 28, 2018

Tech Challenged

A New York town court justice has resigned as announced in a press release from the Commission on Judicial Conduct

Judge Scolton was served with a Formal Written Complaint dated November 19, 2018, containing three charges alleging that he (1) failed to make timely reports and deposits of court funds to the State Comptroller, despite two previous cautionary letters for such derelictions; (2) failed to make proper notifications to the Department of Motor Vehicles as to 2,612 defendants in motor vehicle cases who were convicted, or failed to pay a fine or failed to answer the charge; (3) failed for more than three years to monitor his official court email account or respond to emails received by that account; and (4) failed for at least a year to activate or utilize a computer and software provided to him by the Office of Court
Administration for the purpose of facilitating the court’s financial and case administration.

The commission's order is linked here. (Mike Frisch)

December 28, 2018 in Judicial Ethics and the Courts | Permalink | Comments (0)

Saturday, December 22, 2018

Anatomy Of A Judicial Disaster

You won't read a much harsher assessment of judicial misconduct than that found in a recent Special Master report before the Michigan Judicial Tenure Commission.

The high-profile hearing took eight hearing days in October. A further hearing on additional charges was held on November 19

Perhaps the most serious charge proven against respondent Theresa Brennan is her failure to disqualify herself from the case of People v. Kowalski, Livingston County Case No. 08–17643-FC, because it was not only serious misconduct, but also one that infected the integrity of a serious criminal proceeding, a charge of double homicide firstdegree murder that resulted in a sentence of life imprisonment without parole.

The Kowalski case was assigned in March, 2009 to Judge Brennan, who was crossassigned to the circuit court. Michigan State Troop Detective Sean Furlong investigated the case, was the co-officer in charge, took the confession of the defendant, and was the principal witness before and during the trial.

After finding the two were socially intertwined to an extent concealed from the parties

The foregoing was more than sufficient to have required Judge Brennan’s disqualification. The denial of disqualification was all the more egregious, however, because, by the time of the disqualification motion and for a significant period before, Judge Brennan had a romance with detective Furlong. Yes, a romance...

What appears, then, is the trajectory of a romance between Judge Brennan and Detective Furlong that started sometime before her birthday in 2007 and continued at least until sometime in late 2013 when, Judge Brennan says, they first had sexual relations. January 4, 2013, the date of the disqualification motion, fell at the hottest part of that trajectory.

Thus

Should Judge Brennan have agreed to disqualify herself at the time of the motion? The answer seems to be obviously “yes,” but as a practical matter it was a near impossibility for her to do it at the time, because a recusal in response to the motion would have acknowledged the travesty of having presided for 4 years over a criminal prosecution when she’d had a close relationship with the investigator, officer in charge, and principal witness.

So, what could or should Judge Brennan have done? When the Kowalski case was first assigned to her, she could have quietly recused herself sua sponte, with a vague reference to preserving the appearance of propriety. That would have saved us, and herself, that much of this travail.

The respondent’s concealment of her relationship with Detective Furlong and failure to recuse herself was gross misconduct that violated Canons 1, 2, and 3 C of the Michigan Code of Judicial Conduct.

She did not recuse herself from her own divorce for six days leading to another series of rhetorical questions

What could possibly explain a 6-day delay for a judge to sign a disqualification order in her own divorce case, especially when an emergency motion was pending? Why would a judge have to speak with a lawyer before signing such an order? And why did Judge Brennan lie in her insinuation to Ms. Pratt on December 6 that she had not yet spoken to her lawyer when she had in fact spoken to him the previous day? The evidence commands the conclusion that her intent was to stall for time in order obliterate the data on the phone so that it would not be available as evidence against her. Between the time respondent was apprised of the ex parte motion and December 8, she asked her courtroom staff and a police officer for assistance in deleting information and an email account from the cell phone. On December 8 she asked her court recorder, Felicia Milhouse, to try to delete the Hotmail account from the phone. After Ms. Milhouse was unable to do so, the judge instructed her to leave her duty as court recorder to continue the effort, which she did by means of an extensive Google search. On or shortly before December 8 Judge Brennan bought a new cell phone and, one way or another, caused the original phone to be reset to its factory settings, a procedure that erased all data from the old phone.

More likely than not, Judge Brennan’s attempts and eventual success in obliterating the data from the cell phone rendered her guilty of the felony described in MCL 750.483a(5)(a)...

She failed to recuse herself in cases where her very close friend and her firm were counsel.

The combination of all of the foregoing elements alone should have been enough to require Judge Brennan to provide a recusal - or at least a disclosure - in cases assigned to the judge where Ms. Pollesch or her firm were counsel...

All of the foregoing is aggravated by the fact that Judge Brennan did deny two disqualification motions brought on the basis of relationship with Ms. Pollesch, without a word from the judge about the circumstances listed above.

And abused those whose paths she crossed

The evidence establishes that Judge Brennan has been consistently abusive to attorneys, litigants and witnesses, and to her own court staff as well, as was the universal opinion of any witness who testified about the judge’s demeanor.

A number of examples are provided

David Kaplan, an attorney with 44 years experience in the courts, characterized Judge Brennan as “unique,” for having the worst demeanor of any judge before whom he had appeared in his lengthy career. Her behavior included degrading attorneys in front of their clients, he said, when there was no necessity to do so...

Carol Lathrop Roberts is an attorney who practiced in Livingston County for 30 years and appeared before Judge Brennan 4 or 5 dozen times, she estimated. She found respondent’s courtroom behavior appalling, abusive and routinely unpleasant disrespectful and intimidating to litigants and attorneys. Roberts deemed the judge “a black smear on the judiciary.”

...According to several witnesses, the judge was conspicuously and continually abusive to her secretary/court recorder, Kristi Cox, who herself testified to the same. She was diagnosed with posttraumatic stress disorder as a result of working for Judge Brennan.

And there is this finding

The scope of Judge Brennan’s willingness to give false testimony under oath is breathtaking. She testified falsely in depositions, in sworn answers to Commission questions, and during the hearing as well. If this opinion should attempt to address each instance or even most of them, it would be verbose in what has already been a lengthy process. Accordingly, we’ll note instead that the Examiner has painstakingly enumerated the instances of the respondent’s false testimony in a document entitled “Appendix 2 – False Statements.” Attached to this report, it is adopted as accurate.

She also used staff to run personal errands and in her campaign.

A stain on the judiciary spread  elsewhere

Jessica Yakel Sharpe was a law clerk and magistrate who worked for Judge Brennan for 2 ½ years. Among the things that Ms. Sharpe did for the judge was to stain the deck at her home over three days, two of which passed while she was being paid by the county. It’s no justification, of course, that the judge also paid Ms. Sharpe for that work.

WXYZ Detroit reports that prosecutors will agree to vacate the Kowalski conviction and grant him a new trial in light of this report. (Mike Frisch)

December 22, 2018 in Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, December 20, 2018

Magistrate Reprimanded For Revolving Door Violation

The Ohio Supreme Court reprimanded a magistrate

In November 2017, relator, disciplinary counsel, charged Holben with judicial misconduct for failing to disqualify herself from three cases in which she had participated as a government lawyer prior to becoming a magistrate. Holben stipulated to the charged misconduct. After a hearing, a three-member panel of the Board of Professional Conduct dismissed one of the stipulated rule violations, found that Holben engaged in the remaining charged misconduct, and recommended that we publicly reprimand her. The board issued a report adopting the panel’s findings and recommended sanction, and neither party has objected to the board’s report.

The story

Prior to becoming a magistrate in December 2015, Holben served for nine years as an attorney for Franklin County Children Services. She has stipulated that in March and April 2016—less than six months into her new position as a juvenile-court magistrate—she presided over three cases in which she had previously participated personally and substantially as a lawyer for the agency. Holben also stipulated that she failed to properly seek the parties’ and attorneys’ waiver of disqualification.

For example, in one of those cases, Holben had represented children services for over two years in juvenile-court proceedings involving a mother with chronic drug-dependency issues. Holben had personally and substantially participated in the case by filing multiple motions regarding the custody of the mother’s two minor children, including a request to place the children in the custody of their maternal grandparents, and by appearing and arguing positions adverse to the mother in eight hearings, including an annual review hearing that resulted in the grandparents obtaining legal custody of one of the children.

In April 2016, children services suspected that the same mother was again using drugs and requested the juvenile court to grant the agency a temporary  order of protective supervision for one of the children. Children services also filed a new complaint regarding the mother’s third child, who was only one year old. By that time, Holben had commenced her employment as a juvenile-court magistrate. Although Holben was not initially assigned to the case, the magistrate scheduled to preside over an April 29, 2016 preliminary hearing requested that she cover for him because he had formerly represented the father in the same proceeding. Despite Holben’s prior involvement in the case—and despite the fact that the juvenile court employed seven magistrates to handle these cases—Holben agreed to hear the matter.

When Holben commenced the preliminary hearing, the mother had not yet arrived. Holben disclosed to counsel that she had represented the agency on a different aspect of the case, but she did not request that the parties or counsel consider waiving her disqualification. Children services requested a temporary order of protective supervision regarding both children, which would have authorized the agency to investigate and monitor the circumstances of the home without removing custody from the mother. The attorney for children services specifically argued that the agency “would like to work with Mother” and noted that the mother had submitted to a drug screen, with negative results, since the filing of the new allegations.

The mother arrived late for the hearing, and Holben immediately recognized her. After the mother requested an attorney, Holben appointed the same attorney who had previously represented the mother in the case, although the attorney had not attended the hearing. Holben advised the mother that if she wanted her attorney present, she could request a continuance after counsel for the other parties had the opportunity to state their requests for temporary orders. But after hearing from the attorneys, Holben failed to give the mother an opportunity to request a continuance or respond to their arguments. Instead, Holben issued a temporary order placing custody of the one-year-old child with children services, which was contrary to the agency’s position at the hearing. According to the parties’ stipulations, Holben’s decision caused the mother to become extremely upset in the courtroom, and less than two weeks later, a different magistrate vacated Holben’s order and entered the order requested by the agency, which reunited the mother and child.

Reprimand is appropriate

By not disqualifying herself from cases in which she had participated personally and substantially as a government lawyer, Holben failed to promote public confidence in the independence, integrity, and impartiality of the judiciary. But she has since acknowledged the wrongfulness of her misconduct and appears dedicated to ensuring that it is not repeated. The board’s recommended sanction is appropriate in this case.

(Mike Frisch)

December 20, 2018 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Friday, December 14, 2018

Lest Ye Be Judged

A former judge's participation in a matter in which he previously had presided has drawn a 30-day suspension from the Oregon Supreme Court.

The Oregonian (Aimee Green)  reported

The Oregon Supreme Court decided Thursday to suspend the law license of retired Clackamas County Circuit Judge Steven Maurer for 30 days, finding that after he left the bench and went into private practice, he wrongly represented a divorced man in a child custody case.

Maurer had presided over the couple’s divorce case while working as judge in 2007 and 2008. In 2013, after 25 years as a judge, Maurer retired and began working as a lawyer again in Lake Oswego.

In 2015, the ex-wife went to court based on her allegation that her ex-husband was continuing to subject their daughter to a cat even though the girl was allergic. The ex-wife asked a judge to order that her ex-husband must allow his home to be inspected for the presence of a cat before visits from the daughter.

The ex-husband hired Maurer to represent him. Maurer told the ex-wife that he was a retired judge, but he didn’t remind her that he’d presided over her divorce case. He also he didn’t get her signed consent to proceed as her ex-husband’s lawyer, according to a Supreme Court summary.

Failing to do so would be a professional conduct violation -- if the divorce proceedings were considered similar and related to the more recent dispute. Maurer contended they were different, but the Supreme Court found that the two were connected.

Maurer didn’t respond to a phone message Thursday left with his office.

Maurer has been a lawyer in Oregon for 43 years. In deciding the length of his suspension, the Supreme Court noted that he had no prior disciplinary record. The high court also said Maurer had no “dishonest or selfish motive” and he is “of good character and has a good reputation in the community.”

Maurer’s 30-day suspension will begin in two months.

(Mike Frisch)

December 14, 2018 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, December 13, 2018

Homophobic Remarks And Gestures Lead To Resignation

The New York Commission on Judicial Conduct accepted the resignation of a town court justice.

The charges

Respondent was served with a Formal Written Complaint dated August 16, 2018, containing one charge, alleging that between January and June 2017, he made homophobic and/or otherwise inappropriate remarks and gestures to attorney Terence M. Brennen at the Jefferson County Court Complex in Watertown, New York.

Aceshowbiz reported

A Jefferson County town justice has announced his resignation after making extremely vulgar, homophobic remarks about actor Viggo Mortensen and his lawyer. LeRay Town Court Justice John Hallett's, a Watertown attorney, resignation comes after he was being investigated for the crude comments and an obscene hand gesture.

Last January, Hallett had a heated argument with another lawyer, a Jefferson County Senior Assistant District Attorney named Terrence Brennen. Brennen was promoting a winter film festival in which actor Mortensen was being honored.

Of the festival, Hallett allegedly said that the festival was "about the gayest thing I have ever heard." As if that was not controversial enough, Hallett doubled down everything. According to a complaint with the state Commission on Judicial Conduct, he went on adding, "You and Viggo Mortensen should get a hotel room and suck each other's d**ks."It appeared that Hallett didn't plan to stop. Five months after making the comments, he talked to the same lawyer again. This time, he made a gesture with his hand to his mouth to "connote oral sex" as well as patted the attorney lightly on the cheek. "There, there little boy," he reportedly told Brennen.

An investigation was opened regarding the matter as the commision hit Hallett with a formal written complaint in August. However, even before the hammer comes down, Hallett announced he would be stepping down by December 31 and never seek or accept judicial office again. It was said that he agreed to quit his job due to pressure.

"Homophobic remarks and anti-LGBTQ sentiments have no place in the lexicon of the courts or the vocabulary of a judge," the commission's administrator, Robert H. Tembeckjian, said in a statement.

"Such statements undermine public confidence in the integrity and impartiality of the judiciary, which demands that a judge be and appear fair-minded and unprejudiced toward all who have business in the courts," Tembeckjian added

He has agreed to forgo future judicial office. (Mike Frisch)

December 13, 2018 in Judicial Ethics and the Courts | Permalink | Comments (0)

Friday, December 7, 2018

A Prestigious University

The Florida Judicial Ethics Advisory Committee opines on college admissions issues

ISSUES

1. May a judge serve as a member of a committee tasked with interviewing applicants who seek admission to the judge’s alma mater?

ANSWER: Yes.

2. May the judge provide his impression of the applicant?

ANSWER: Yes.

3. May the judge recommend the student for admission?

ANSWER: Yes, as long as the judge’s title is not mentioned in or as a part of the recommendation.

 

FACTS

The inquiring judge is a graduate of a prestigious university. The judge has been asked to conduct interviews of high school seniors who are applying for admission to the university. Upon completion of the interview process, the judge will be asked to complete an interview form detailing the judge’s thoughts on how the interview went, the judge’s impression of the student, and whether the judge would recommend the student for admission to the university.

Note

Absent from the inquiry is whether the judge has been requested to participate in the interviews because the judge is an alumnus, a judge or because the judge is an alumnus who is a judge. If the judge’s title need not and will not adorn the judge’s report of the interview or the recommendation that will accompany the report, there is no impediment whatsoever to the judge offering an impression of the applicant, the interview and advising on whether the applicant is worthy of admission. However, if the judge’s title will be included in the interview report we suggest that the judge not make any recommendation regarding admission to the university. We do not believe that a single interview of whatever length is adequate to serve as the “personal knowledge” contemplated by the canons and necessary to offer any type of recommendation by a member of the judiciary.

(Mike Frisch)

December 7, 2018 in Judicial Ethics and the Courts | Permalink | Comments (0)

Saturday, December 1, 2018

Bristol Stomp

A former juvenile and domestic relations court judge has been suspended for nine months for improper contact with potential witnesses in a federal case in which his spouse was under indictment.

The spouse was the CFO of the Bristol Virginia Utilities Authority. One of the potential witnesses was the president of the company who was installed after the alleged crimes - corrupt practices and tax fraud - had taken place.

The judge sent him this note

Hi Don:

I just wanted to sincerely thank you for your kindness and understanding and support for Stacey during these horrible times. By now I am sure you would agree she is absolutely honest, truthful, ethical, and innocent! It is horrible what our government is doing to her. She will be proven innocent. Thank you for believing in her.

Kurt Pomrenke

Another witness got this voice mail message

Hey Connie, this is Kurt, um, when you're testifying in that trial there might be a couple of things that you could do that would really help Stacey. If you could kinda slip in when you have a chance just little remarks like, how Stacey did a great job, or Stacey was the one that took care of the employees, or Stacey is just an honest ... just any, any kind of little comments you can make to support her or, Stacey was the one that always looked out for the employees, or, just something like that even though it's not directly in response to the questions, if you could figure out a way to, to do that I really think that would help and make a huge difference. I'm sorry you're caught up in this, but we feel real good about the outcome and sure appreciate your help. Thank you, bye.

Neither witness was called at the trial, where the spouse was convicted of 14 counts. 

WJHL reported on the sentencing. 

He was removed from office for violating judicial ethics

By written opinion dated November 27, 2017 (the "Opinion"), the Supreme Court of Virginia found that the Commission had proven by clear and convincing evidence that Respondent violated Canons 1, 2A, and 2B and ordered that Respondent "be removed immediately from the office of Judge of the Twenty-Eighth Juvenile and Domestic Relations Judicial District[.]"

He also violated a court order in the criminal case by using discovery materials in his judicial ethics defense

Following bench trial on or about September 13, 2017, Respondent was convicted of one count of criminal contempt in violation of 18 U.S.C. Section 401.

On November 30, 2017, the Federal Court entered a Judgment in a Criminal Case sentencing Respondent to a two-month term of imprisonment for criminal contempt.

Respondent served his criminal sentence from January 17, 2018 until March 15, 2018, at which point he was released from federal prison.

The Bristol Herald Courier reported on the sanction. (Mike Frisch)

December 1, 2018 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, November 28, 2018

Evenly Split

An opinion issued last month by the Florida Judicial Ethics Advisory Committee

Opinion Number: 2018-27
Date of Issue: October 26, 2018

ISSUE

1. May the Florida Conference of Circuit Judges and the Conference of County Court Judges of Florida (collectively “Conferences”) or individual judges seek donations from the Conferences’ members so that the Conferences can directly provide monetary assistance, to fellow judges, judicial assistants, and court staff impacted by Hurricane Michael?

ANSWER: The JEAC is evenly divided on this question. Half believe the fund raising activity is permissible, while the other half believe that it is impermissible.

2. Can the organizations set a matching dollar limit?

ANSWER: This is not primarily a judicial ethics issue; thus no opinion is provided.

3. May the donations be collected using an electronic format including, but not limited to, PayPal, Zelle, Venmo and/or GoFundMe?

ANSWER: This is not primarily a judicial ethics issue; thus, no opinion is provided. However, the inquirers should consider whether these platforms can be relied upon to prevent non-judges from donating if the inquiring parties decide to go forward with the described fund-raising activities.

(Mike Frisch)

November 28, 2018 in Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, November 15, 2018

With Friends Like These: Florida Rejects Judge-Lawyer Facebook Friendship As Basis To Disqualify

The Florida Supreme Court has resolved a district court of appeal split on the disqualification implications of a lawyer-judge Facebook friendship 

In this case, we consider an issue regarding the legal sufficiency of a motion to disqualify a trial court judge on the basis of a Facebook “friendship.” This Court granted jurisdiction to review the decision of the Third District Court of Appeal in Law Offices of Herssein & Herssein, P.A. v. United Services Automobile Ass’n, 229 So. 3d 408 (Fla. 3d DCA 2017), which held that the existence of a Facebook “friendship” was not a sufficient basis for disqualification and which expressly and directly conflicts with the decision of the Fourth District Court of Appeal in Domville v. State, 103 So. 3d 184 (Fla. 4th DCA 2012). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

We hold that an allegation that a trial judge is a Facebook “friend” with an attorney appearing before the judge, standing alone, does not constitute a legally sufficient basis for disqualification. We therefore approve the decision of the Third District in Herssein and disapprove the decision of the Fourth District in Domville on the conflict issue.

Chief Justice Canady authored the majority opinion

We now come to the crux of the matter: what is the nature of Facebook “friendship?” “The word ‘friend’ on Facebook is a term of art.” Chace, 170 So. 3d at 803. In its most basic sense, a Facebook “friend” is a person digitally connected to another person by virtue of their Facebook “friendship.” See, e.g., Power Ventures, 844 F.3d at 1063; Ehling, 961 F. Supp. 2d at 662.

A Facebook “friend” may or may not be a “friend” in the traditional sense of the word. But Facebook “friendship” is not—as a categorical matter—the functional equivalent of traditional “friendship.” The establishment of a Facebook “friendship” does not objectively signal the existence of the affection and esteem involved in a traditional “friendship.” Today it is commonly understood that Facebook “friendship” exists on an even broader spectrum than traditional “friendship.” Traditional “friendship” varies in degree from greatest intimacy to casual acquaintance; Facebook “friendship” varies in degree from greatest intimacy to “virtual stranger” or “complete stranger.”

Bottom line

In some circumstances, the relationship between a judge and a litigant, lawyer, or other person involved in a case will be a basis for disqualification of the judge. Particular friendship relationships may present such circumstances requiring disqualification. But our case law clearly establishes that not every relationship characterized as a friendship provides a basis for disqualification. And there is no reason that Facebook “friendships”—which regularly involve strangers—should be singled out and subjected to a per se rule of disqualification.

LABARGA, J., concurring.

I concur with the majority opinion. However, I write to strongly urge judges not to participate in Facebook. For newly elected or appointed judges who have existing Facebook accounts, I encourage deactivation of those accounts. As explained by the majority, “friendship” on Facebook, without more, does not create a legally sufficient basis for disqualification. Rather, the unique facts and circumstances of each case, in addition to the base fact of “friendship,” are what will determine whether disqualification is required.

Nevertheless, as noted by the dissent, participation in Facebook by members of the judiciary “is fraught with risk that could undermine confidence in the judge’s ability to be a neutral arbiter.” Dissenting op. at 24. This is deeply concerning because judges are to decide cases solely upon the facts presented to them and the law. The public and the parties expect nothing less. Therefore, judges must avoid situations that could suggest or imply that a ruling is based upon anything else. Facebook “friendships” fall across a broad spectrum, from virtual stranger to close, personal friend. Because the relationships between judges and attorneys can fall anywhere on that spectrum, judges who elect to maintain Facebook “friendships” with attorneys who have any potential to appear before them are, quite simply, inviting problems. 

Justice Pariente, J., dissented joined by two colleagues.

She quoted the 2012 lower court decision in Domville

Judges do not have the unfettered social freedom of teenagers. Central to the public’s confidence in the courts is the belief that fair decisions are rendered by an impartial tribunal. Maintenance of the appearance of impartiality requires the avoidance of entanglements and relationships that compromise that appearance. Unlike face to face social interaction, an electronic blip on a social media site can become eternal in the electronic ether of the internet. Posts on a Facebook page might be of a type that a judge should not consider in given case. The existence of a judge’s Facebook page might exert pressure on lawyers or litigants to take direct or indirect action to curry favor with the judge. As we recognized in the panel opinion, a person who accepts the responsibility of being a judge must also accept limitations on personal freedom.

And "wholeheartedly agree[s]"

While Facebook and other social media sites have become more sophisticated, recent history has shown that a judge’s involvement with social media is fraught with risk that could undermine confidence in the judge’s ability to be a neutral arbiter. For these reasons, I would adopt a strict rule requiring judges to recuse themselves whenever an attorney with whom they are Facebook “friends” appears before them. This rule does little to limit the judge’s personal liberty, while advancing the integrity of the judicial branch as the one branch of government that is above politics...

The premise of the majority opinion is that Facebook friendships and traditional friendships are analogous. But, equating friendships in the real world with friendships in cyberspace is a false equivalency. The existence of a Facebook “friendship” may reveal far more information regarding the intimacy and the closeness of the relationship than the majority would assign it. For example, as the majority explains, once a person becomes “friends” with another Facebook user, that person gains access to all of the personal information on the user’s profile page—including photographs, status updates, likes, dislikes, work information, school history, digital images, videos, content from other websites, and a host of other information—even when the user opts to make all of his or her information private to the general public. [cites omitted]  Additionally, the ease of access to the “friend’s” information allows Facebook “friends” to be privy to considerably more information, including potentially personal information, on an almost daily basis.

The bottom line

The bottom line is that because of their indeterminate nature and the real possibility of impropriety, social media friendships between judges and lawyers who appear in the judge’s courtroom should not be permitted. Under this rule, the opposing litigant would not be required to delve into how close the Facebook friendship may be, the judge avoids any appearance of impropriety, and Florida’s courts are spared from any unnecessary questions regarding the integrity of our judiciary. Regardless, in this case, the judge was required to recuse herself because of binding precedent. Thus, I would quash the Third District Court of Appeal’s decision in Law Offices of Herssein & Herssein, P.A. v. United Services Automobile Ass’n, 229 So. 3d 408 (Fla. 3d DCA 2017), and approve the Fourth District’s decision in Domville.

Accordingly, I dissent.

(Mike Frisch)

November 15, 2018 in Judicial Ethics and the Courts | Permalink | Comments (0)

Letter Of The Law

The Florida Supreme Court has reprimanded a Miami-Dade County Court Judge.

we approve the parties’ stipulation to the allegation that Judge White-Labora improperly provided a character reference letter, on her official court stationery, on behalf of a criminal defendant awaiting sentencing in federal court, as well as the JQC’s finding that this misconduct violated two canons of the Code of Judicial Conduct. We also approve the stipulated discipline of a public reprimand.

The court quoted the Judicial Qualifications Commission

The Investigative Panel of the Commission has now entered into a Stipulation with Judge White-Labora in which Judge WhiteLabora admits that her conduct, in writing and sending a letter of reference to a sentencing judge, on behalf of a criminal defendant awaiting sentencing in federal court[,] was inappropriate. This conduct violated Canons 1 and 2 of the Code of Judicial Conduct, as set forth in the Stipulation and Notice of Formal Charges submitted herewith.

Judge White-Labora has admitted the foregoing, accepts full responsibility, and acknowledges that such conduct should not have occurred. She has cooperated fully with the JQC.

The court approved the sanction proposed by the JDC. (Mike Frisch)

The Judicial Qualifications Commission has concluded that while the judge did not intend to violate the Canons, she did not take appropriate steps to inform herself about the propriety of sending such a letter. Additionally, the Commission is mindful of the fact that her action in writing the letter, while inappropriate, was not motivated by selfish interests or motives. The JQC also notes Judge WhiteLabora’s lengthy and heretofore unblemished service as a judicial officer.

November 15, 2018 in Judicial Ethics and the Courts | Permalink | Comments (0)