Wednesday, December 30, 2020
The New York Judicial Conduct Commission has imposed an agreed public censure of a supreme court justice.
From the commission press release
From January 2018 through March 2018, Judge Panepinto publicly supported the teachers at Buffalo City Honors School (“CHS”) in connection with a lawsuit brought by their union (the Buffalo Teachers Federation) against the Buffalo Board of Education. Her daughter attended the school.
Judge Panepinto admitted to:
making repeated public comments about the issues and people involved in the litigation, in person, by email and on social media platforms in which she was publicly identified as a judge;
providing legal information and advice to parents of CHS students;
signing advocacy letters;
speaking about the pending and impending lawsuits with Board of Education members;
joining the Federation’s lawyer in the courthouse and outside the courtroom prior to a case conference; and
executing an affidavit in support of the Federation’s case, which was attached as an exhibit to court papers.
The Commission found that the judge’s “numerous violations of the Rules [Governing Judicial Conduct] during the relevant three-month period undermined public confidence” and that her conduct “was improper and went beyond appropriate action specifically concerning her personal interest in her daughter’s education.”
The judge had joined a Facebook group and gave legal advice to group members.
She "publicly criticized" the school principal and posted a Facebook comment to a newspaper editorial, which disclosed her judicial status
Respondent avers that she did not know that Facebook settings would automatically identify her by her judicial title. Respondent concedes that she should have familiarized herself with such Facebook protocols prior to posting the comments at issue.
On or about February 14, 2018, respondent spoke to a group of more than 100 people at a BBOE meeting at Buffalo City Hall, where she criticized CHS’s plans to transfer teachers. Respondent did not identify herself by her judicial title, but respondent’s appearance and comments were reported in the Buffalo News, which identified her as “a state Supreme Court justice.”
Photographed with counsel in the courthouse hallway
Particularly troubling was respondent’s decision to stand with counsel for the union and two CHS parents in the Buffalo Supreme Court facility where respondent presides. Respondent stood with them in a hallway outside the courtroom of the judge presiding over the union’s case immediately before a case conference was held. By standing with union counsel in the courthouse where she serves, respondent, who spoke repeatedly and publicly in favor of CHS teachers, undermined confidence in the impartiality of the judiciary
There is no suggestion that the justice was motivated by anything other than a sincere interest in her daughter's education but
Respondent’s numerous violations of the Rules during the relevant three-month period undermined public confidence in the integrity and impartiality of the judiciary. The totality of evidence demonstrated that respondent’s extra-judicial conduct was improper and went beyond appropriate action specifically concerning her personal interest in her daughter’s education.
Thursday, December 24, 2020
The Nevada Supreme Court affirmed the imposition of a public admonishment of a hearing master
During juvenile court proceedings, Hearing Master Henry questioned a minor about her cell phone. When the minor's attorney, Aaron Grigsby, refused to answer the question on his client's behalf and interfered when Hearing Master Henry attempted to question the juvenile directly, Hearing Master Henry shouted "enough" at Grigsby several times. Hearing Master Henry also threatened to call the attorney who assigned Grigsby's conflict cases based on his continued objections to Hearing Master Henry's questions and his request to transfer the case to another judge. Hearing Master Henry then increased her probation recommendation regarding the minor from six months to nine months because the minor would not answer her question.
The court affirmed the misconduct findings and evidentiary rulings below.
The case is In The Matter of the Honorable Jennifer Henry. (Mike Frisch)
Tuesday, December 22, 2020
A public censure has been imposed on a Court of Appeals judge by the North Carolina Supreme Court.
The judge had hired a longtime and close personal friend to supervise his law clerks, resulting in a toxic work environment
Mr. Tuite also regularly used profanity during the workday, belittled others and used fear and intimidation while interacting with and supervising the law clerks. Mr. Tuite frequently used the word “fuck” and referred to female law clerks on more than one occasion as “bitch” or “bitching.”
The judge knew about and implicitly condoned the behavior as well as Tuite's dishonesty and lack of diligence
After learning of Mr. Tuite’s dishonesty and lack of diligence on multiple occasions, Respondent failed to address these issues directly with Mr. Tuite...
during a cold workday while outside with Ms. Suber, Mr. Tuite stated that he would like to see her in a “wife beater” tank top and shorts on a cold day. Mr. Tuite, on or about the following day, asked Ms. Suber to come into Respondent’s office (when Respondent was away from the office), kept the lights off and sat down beside her and told her that he “was married but not blind” or similar words in an apparent attempt to apologize for the inappropriate sexual remark from the previous day. Ms. Suber was offended and upset by the inappropriate and suggestive sexual remarks and non-apology when they occurred, felt unsafe as a result and feared it would occur again.
On another occasion, during the summer of 2017, while reviewing a female law clerk’s application, Mr. Tuite intentionally and in the presence of Respondent, Ms. Suber and Ms. Scruggs, repeated derogatory and belittling online comments about the female applicant comparing her breasts to “fun bags.”
Several other workplace transgressions are described by the court.
In response to the complaint
Respondent downplayed, minimized and mischaracterized Mr. Tuite’s workplace misconduct in his December 3, 2017 email to Ms. Jabbar. Respondent did so because his conduct and judgment were influenced by his close personal friendship with and loyalty towards Mr. Tuite...
Notwithstanding Respondent’s knowledge of Mr. Tuite’s extensive workplace misconduct, from the period from December 1, 2017 until January 5, 2018, Respondent regularly assured his close personal friend Mr. Tuite and indicated to others that his employment at the Court of Appeals would continue. On December 1, 2017 and prior to ascertaining if Mr. Tuite had made any sexually inappropriate comments to Ms. Suber, Respondent assured his friend Mr. Tuite that his job was secure. Mr. Tuite again texted Respondent on or about December 4, 2017 and stated to Respondent that he was “glad you have my back.” On Tuesday, December 5, 2015, Mr. Tuite texted Respondent, to whom he referred to as “Dude,” and expressed concern for his job security. Respondent texted back and again reassured his close friend: “You are not losing your job. This sucks tremendously for everyone, especially given what I expect to be an easy resolution when the smoke clears.” On December 11, 2017, Respondent contacted Ms. Jabbar and informed her that he wanted Mr. Tuite to return to the office, to which Ms. Jabbar replied that Mr. Tuite “should not return to the office for any reason” until the investigation is complete. On January 4, 2018, Respondent also advised his chambers that he was planning for Mr. Tuite’s return to work and intended to move Mr. Tuite’s desk from the EA area into Ms. Scruggs’ private law clerk office in the hallway.
The court rejected the judge's sufficiency of evidence contentions as well as his suggestion that he was being sanctioned for the conduct of Tuite
Respondent’s vindictive behavior toward Mr. Cooper immediately before and after his resignation violates these canons. Respondent was neither courteous nor dignified, nor did he require courteous or dignified behavior from his staff. Similarly, respondent’s failure to address Mr. Tuite’s inappropriate comments about a female applicant, angry outbursts, and frequent use of profanity against law clerks in the chambers amount to violations of Canons 3A(3) and 3B(2).
The Court recognizes that respondent was not immediately made aware of the entirety of Mr. Tuite’s misconduct in chambers. The incidents for which respondent was present, however, were sufficient to warrant corrective action with regard to Mr. Tuite. Instead, respondent continued to turn a blind eye. This shortcoming is not, as respondent contends, simply a matter of managerial style. Rather, it is a failure to recognize the gravity of Mr. Tuite’s sexually explicit language and profane and suggestive language directed toward respondent’s law clerks and the impact on the law clerks of such unprofessional behavior.
Progressive Pulse reported on the decision. (Mike Frisch)
The North Carolina Supreme Court has publicly reprimanded a judge who held a probable cause hearing in the absence of counsel, who was late for a scheduled 2 pm hearing.
The judge held the hearing at the end of his calendar at about 2:50
Unlike the trial court in Simpkins, respondent rushed to hold a hearing without counsel present, he failed to explore other options regarding counsel prior to commencing the proceeding, and he made comments about “making a point” after the proceeding. This conduct demonstrated a disregard for the defendant’s statutory and constitutional rights, and that disregard undermines public faith and confidence in the judiciary.
The court adopted the recommendation of the Judicial Standards Commission.
Justice Earls dissented
Because it is not clear to me that respondent’s conduct, while misguided, was so egregious as to be prejudicial to the administration of justice, I would have remanded to the Judicial Standards Commission for the issuance of a private letter of caution rather than issue a public reprimand from this Court
Justices Newby and Davis joined the dissent. (Mike Frisch)
Friday, December 18, 2020
The Ohio Supreme Court has suspended a former magistrate for six months, rejecting the Board on Professional Conduct's proposed stay of the suspension
In a December 5, 2019 complaint, relator, disciplinary counsel, alleged that Bachman engaged in judicial misconduct in conjunction with an incident involving a woman who had disrupted a trial in his courtroom by screaming in the hallway. Bachman left the bench to locate the woman, brought her into his courtroom, summarily held her in direct contempt of court, and when she protested his actions, increased her three-day jail sentence to ten days.
The alleged contemnor came to the courthouse seeking a civil protection order and was told by the clerk's office to return on the following day.
She went to the courtroom in the hope of being heard that day and had a conversation with the magistrate's law clerk.
She exited the courtroom and
K.J. then screamed so loudly that it was heard in the courtroom and captured on the audio system that was recording the proceedings. Bachman immediately said, “Okay, time-out” and stopped the trial. He then left the bench and exited the courtroom.
He directed her to return
She complied and began to walk back to the courtroom with Bachman following her. When K.J. turned toward the main entrance of the courtroom, Bachman placed his hand between her neck and her shoulder and redirected her to a side entrance. With his hand still firmly between her neck and her shoulder, Bachman directed her into the courtroom and into the jury box.
Her "trial" followed
K.J. became upset, started crying, and yelled, “No! No!” Bachman stated, “Don’t make it worse ma’am.” After K.J. resisted the deputies and screamed several times, Bachman said, “Ten days.” While the deputies wrestled with K.J., she yelled, “Why every time I come here to get help, you always send me to jail? You didn’t even hear what it was that I had to say and now I got to go to jail for three days.” Bachman, replied, “Now it’s ten, ma’am.” As deputies dragged K.J. from the courtroom at Bachman’s direction, Bachman addressed one of the deputies to congratulate him on an award that the deputy had received; according to Bachman, he was attempting to “inject some humanity” into the situation. Later that day, Bachman signed an order finding K.J. in direct contempt of court.
The court presiding judge viewed a video of the incident and ordered K.J. released after two days.
He resigned from the bench in the wake of the incident.
The court here called the video "revealing and disturbing"
The next 20 minutes of the video are difficult to watch. While K.J. resists being arrested and pleads with Bachman to explain why she is being jailed for three days, she is physically subdued by two deputies, threatened with being tased, and ultimately dragged from the jury box by several deputies. Bachman’s only response is to increase her jail sentence to ten days. Not only is the chain of events set in motion by Bachman’s misconduct physically and emotionally harmful to K.J., the incident exposed the sheriff’s deputies and other court personnel to harm from a violent and unnecessary arrest on full display in front of a courtroom full of people who have no other choice but to sit silently and witness such a disturbing sight. Bachman then congratulates a deputy on an award the deputy had recently received and resumes the proceeding as if nothing out of the ordinary has just transpired. Meanwhile, the video footage shows, while K.J. continues protesting her arrest, she is dragged, yanked, pinned to a wall, and handcuffed to a chair. Before the video ends, over 20 deputies and members of the court staff are involved in jailing K.J.—all because of a scream of frustration in the hallway that lasted one second.
The court on sanction found he lacked insight into his wrongful conduct
Sending someone to jail is not the adult equivalent to sending a child to his or her room for a time-out.
...the board recommends that we impose a sanction of a six-month suspension stayed in its entirety. However, we find that a stayed suspension is not commensurate with the judicial misconduct in this case. When a judicial officer’s misconduct causes harm in the form of incarceration, that abuse of the public trust warrants an actual suspension from the practice of law
Thursday, December 17, 2020
The Tennessee Court of Appeals has affirmed the denial of a recusal motion filed by a defendant law firm in a legal malpractice case.
The trial judge had handled the underlying class action settlement that led to the malpractice allegations.
The law firm contended that he was a necessary witness in the present matter.
This lawsuit was brought against attorneys who had represented Ms. Hawthorne and others in a prior class action case in Chancery Court, one that concerned the mishandling of human remains at the Galilee Memorial Gardens cemetery. In her first amended complaint in the Malpractice Suit, Ms. Hawthorne asserted that the named Defendant attorneys, “along with their corporate affiliates, recklessly consider[ed] themselves to be infallible . . . [and] wielded total control of the Galilee Class Action . . . and egregiously and inexcusably refused to entertain, respond to, and accept over $25 million dollars in settlement offers made by the Funeral Home Defendants during the trial of the Galilee Class Action.”
The amended complaint alleged over $11 million in damages.
The law firm's position
In this matter, the Defendants contend that they will be calling Chancellor Kyle as an essential witness to prove the falsity of Ms. Hawthorne’s allegation that the Galilee Class Action would have settled for huge sums but for alleged malpractice. Chancellor Kyle will be a key witness, they suggest, due to the requirement that settlements in class actions must garner the consent of the trial court.
The court here
No doubt, the assertion here is that favorable settlements in the underlying lawsuit would have been achieved absent the Defendants’ negligence. Clearly, therefore, that is part of the case Ms. Hawthorne must establish in her “trial within a trial.” In our view, however, the jury is not in a position to make the determination of whether any alleged settlements would have been approved in the underlying litigation. That question is for the court, not the jurors as factfinders, and therefore, there is no basis to solicit supposed factual testimony from Chancellor Kyle on the question. He does not need to testify.
Wednesday, December 16, 2020
The Tennessee Board of Judicial Conduct has reprimanded a judge for violation of the state Supreme Court COVID guidelines
your courtroom has at times been filled to capacity, even to the point of members of the public having to stand shoulder to shoulder along the walls because all seats are taken.
Also a courtroom comment
you wished that Chief Judge Jeff Bivens would win an award so that the COVID-19 mandates from the Supreme Court would end.
The judge acknowledged the misconduct.
The board letter noted that the judge's courtroom is small and that he sought to address the backlog on the docket.
However, the court guidelines are not "mere suggestions" and compliance is "not optional." (Mike Frisch)
Monday, December 14, 2020
An opinion of the Florida Judicial Ethics Advisory Committee
Opinion Number: 2020-26
Date of Issue: December 10, 2020
Whether an outgoing judge may authorize a prospective employer to advertise the judge’s anticipated post-judicial employment at the firm
The inquiring judge will be leaving judicial office in the next few months. The judge has secured prospective post-judicial employment at a private law firm. The firm has indicated that it would like to immediately begin advertising the judge’s affiliation with the firm with respect to the anticipated post-judicial employment. The inquiring judge’s term ends on January 5, 2021.
The inquiring judge wishes to know whether the law firm’s advertising would be prohibited by the Code of Judicial Conduct.
Our Committee has not squarely addressed the specific issue the inquiring judge has raised. However, our federal counterpart, the Committee on Codes of Conduct of the Judicial Conference of the United States, has. In Committee on Codes of Conduct Advisory Opinion No. 84: Pursuit of Post-Judicial Employment, the federal committee observed:
Questions also may arise concerning a future employer’s desire to announce or otherwise advertise a judge’s post-judicial employment. On these questions, the Committee has advised that once the judge has actually resigned and joined the new employer, it is not improper for the employer’s formal announcement of affiliation to identify the office and court from which the judge retired or resigned. However, that guidance assumes the announcement is made after the judge has left the bench. A post-resignation announcement avoids the appearance of impropriety because, after a judge has left the bench, the judge has no judicial position, and therefore no position to exploit. However, while a judge remains in office, this risk remains. In addition, the Committee has advised that by allowing a future employer to advertise the judge’s employment while the judge remains in office, the judge unavoidably lends the prestige of judicial office to advance the private interests of the future employer. Similarly, the prospect of a pre-resignation announcement raises Canon 2 concerns for the judge. Although the judge may not enjoy any immediate profit from the announcement, the judge’s future employer likely benefits from its association with a sitting judge, and the judge arguably stands to gain indirectly from the public advertisement of the judge’s post-judicial employment. It follows that announcements of the judge’s future employment made through interviews or contacts with the media are subject to the same restrictions.
We agree that by “allowing a future employer to advertise the judge’s employment while the judge remains in office, the judge unavoidably lends the prestige of judicial office to advance the private interests of the future employer.” Accordingly, we answer the inquiring judge’s question in the negative.
Friday, December 11, 2020
The Ohio Supreme Court has granted disqualification of a judge who intended to hold in-person jury trials this month without safety protocols.
During this public-health emergency, a judge’s priority must be the health and safety of court employees, trial participants, jurors, and members of the public entering the courthouse. Attorneys and the public have a right to know what steps a court is taking to keep them safe while the court continues conducting essential business. If attorneys or litigants believe that judges are not taking seriously recommendations from this court, the governor, or other public-health officials, and that as a result the health of trial participants, jurors, or the public is at risk, the judge’s disqualification may be sought. If a judge cannot prove that he or she has taken steps to protect the safety of individuals in the courtroom, the judge may be disqualified, especially if the judge cannot also articulate the necessity of proceeding with jury trials during this dangerous stage of the pandemic. The consistent guidance from the Ohio Supreme Court has been to utilize technology to conduct the business of the court. Judges in the courts of Ohio have successfully employed technology as sophisticated as Zoom and as basic as a conference call to ensure the safety of litigants, attorneys, staff, and members of the public. There is no mention in Judge Fleegle’s response that the court has employed technology to reduce the flow of people through the courthouse. The guidance from this court has recognized that even during this pandemic there may be the need to schedule an in-person hearing for matters such as a civil protection order, etc. If, in what should be rare occasions, in-person hearings or trials cannot be avoided, judges must ensure that scrupulous safety practices are followed, and they must effectively communicate those practices to all participants. By failing to follow the Ohio Department of Health and Governor DeWine’s directives, a judge endangers the health of those who enter the courthouse and their families, etc. A judge’s noncompliance whittles away at the public’s trust and confidence in the judiciary.
The motion was filed by defense counsel in one of the scheduled trials.
The court here noted that there was no urgency in going forward in the matters.(Mike Frisch)
Tuesday, December 8, 2020
Two new opinions of the Florida Judicial Ethics Advisory Committee
Opinion Number: 2020-23
Date of Issue: November 13, 2020
1. Is a judge disqualified from involvement in proceedings in which one of the attorneys is a former client of the judge or is a member of a law firm formerly represented by the judge?
2. If disqualification is not required, must the judge disclose that an attorney for one of the parties was previously represented by the judge?
ANSWER: Yes, disclosure of the representation should be made for a reasonable period of time after the representation terminated.
The inquiring judge had a legal practice that included the representation of attorneys, their law firms, or both the attorneys and their firms. Some of those clients were statewide law firms which employ many attorneys or were attorneys employed by such firms. It is possible that some of the attorneys whose conduct was at issue could appear before the judge, and likely that attorneys from some of the statewide firms would appear before the judge. The judge requests guidance on whether disqualification is required under such circumstances and, if not, whether disclosure of the relationship is required. The judge further inquires about the length of time which must pass after the representation before disqualification or disclosure is no longer required, should either be necessary.
Opinion Number: 2020-24
Date of Issue: November 13, 2020
Whether a judge must recuse him/herself from any cases where a friend of the judge’s spouse appears as counsel of record but the judge does not have a close social relationship with the lawyer?
If not required to recuse, must the judge disclose the nature of the relationship between the judge’s spouse and the lawyer in all proceedings where the spouse’s friend appears as counsel of record?
ANSWER: No, unless the judge believes that the nature of the friendship is sufficient to warrant reasonable concern over the judge's impartiality.
The inquiring judge presides over a division to which lawyers are assigned, and those lawyers are supervised by other lawyers. A new supervising lawyer has been assigned to the division. The new supervisor is a casual social friend of the judge’s spouse. For example, the new supervisor and the judge’s spouse attend a weekly class and socialize after the class about once a month.
The judge has never socialized with the new supervising lawyer, other than brief interactions at 4 or 5 large charity events over the years. The new supervising lawyer also volunteered, along with many others, to assist in the judge’s campaign a few years ago at a large meet and greet campaign event. The judge has not spoken with the new supervising lawyer in approximately 18 months.
Saturday, November 21, 2020
The Louisiana Supreme Court has ordered the removal of a justice of the peace who was the subject of complaints after assuming office in 2018
In his sworn statement to the OSC, Respondent explained that he did not attend the justice of the peace training in 2018, after he assumed office, because he did not receive any information about it and did not know he needed to attend. Because of that, he stated he did not know “what to do or how to do it.” In addition to Ms. Zaunbrecher’s eviction matter, Respondent described a property dispute where he had been contacted by a man claiming that two other persons bought and sold property owned by him. Respondent explained that he tried to get the implicated parties “just to figure it out” and that he “didn’t know what to do, honestly.” When asked what happened in the case, he said “nothing.” Respondent also recalled meeting with Charles Armitage about a potential legal matter. Mr. Armitage told Respondent he had been trying to reach him, but Respondent recalled that Mr.Armitage only left him one voicemail.
Respondent explained he had difficulty finding time to communicate with the potential litigants because of his non-judicial work schedule. From the time he assumed office until approximately two months prior to his sworn statement, Respondent traveled for work as a welder, working 60 to 70 hours a week and traveling from one week to 50 days at a time. He acknowledged receipt of the OSC’s inquiry letters in the three underlying file numbers. He failed to respond, he explained, because he was away from home for work and was uncertain what to do.
The court rejected ignorance as an excuse
Respondent’s behavior was not simply negligent or the product of his inexperience. Instead, his failure to perform virtually any of his duties negatively impacted and harmed the litigants who tried to appear before him. Furthermore, his repeated promises to take action instead of simply admitting that he never intended to return the fee only add to the damage done to the victims.
By failing to refund the filing fee associated with the attempted eviction, Respondent appears to have, at the very least, misappropriated the fee. Because he did not appear before the Hearing Officer or the Commission, it is impossible to know whether the fee was converted for Respondent’s personal use.
Thursday, November 19, 2020
The New York Commission on Judicial Conduct has admonished a town court justice for "inappropriate" Facebook posts.
Among the posts was.a meme implying that Bill Clinton killed Jeffrey Epstein.
The justice is not an attorney.
The Commission concluded that the various posts had "undermined public confidence" in the judiciary. (Mike Frisch)
Thursday, November 5, 2020
The Louisiana Supreme Court has ordered the interim suspension of a judge.
A Louisiana judge was convicted Saturday of four sex crimes involving juveniles.
Prosecutors said Perilloux groomed friends of his daughters as young as 14 and inappropriately touched several of them. Perilloux denied touching any of the girls, who he said were like daughters to him.
The verdicts ended a trial in which three young women alleged state District Judge Elzey “Jeff” Perilloux touched them inappropriately. Perilloux denied the accusations as did his two daughters, who were present at the time of some of their father’s alleged crimes, The Times Picayune/The New Orleans Advocate reported.
The six-member jury deliberated for an hour before finding Perilloux, 53, guilty on three felony counts of indecent behavior with a juvenile. All of them were underage teens at the time of the episodes, which occurred during Perilloux’s first year in office.
Judge Dennis Waldron found Perilloux guilty of a fourth count, misdemeanor sexual battery.
Waldron scheduled sentencing for Oct. 15. The felony counts of indecent behavior with a juvenile carry sentences of up to seven years in prison.
Perilloux’s trial began Tuesday in the same courtroom where he was sworn in as a judge for the 40th Judicial District. He has been suspended for more than two years pending the outcome of the criminal case.
From The Advocate
The verdicts ended an emotional trial that pitted the testimony of three young women who each said the 40th Judicial District judge touched them inappropriately, against denials from Perilloux and his two daughters, who had been present for some of their father’s crimes...
In two of the three felony charges, Perilloux was convicted of inappropriately touching a 15-year-old girl who had been best friends with one of his daughters. The crimes occurred during two separate back massages, in May and June 2017. During one, she testified, he reached over and held a hand over her breast for 15 to 20 seconds.
Also in June of that year, a 14-year-old girl would later tell authorities, Perilloux rubbed sunscreen all over her body against her wishes after she’d repeatedly said she could do it herself. The girl told State Police that Perilloux had grabbed her shorts while he held a running water hose, attempting to place it down her shorts, although she testified over the week-long trial that she couldn’t remember whether he’d actually touched her shorts.
The misdemeanor sexual battery conviction stems from the testimony of a woman who said she was 17 when she endured Perilloux rubbing Vick’s VapoRub liberally across the top of her breasts after she had applied it to her throat. She said the judge did so as he stood in his underwear with no shirt in his LaPlace kitchen.
The Florida Supreme Court has approved a reprimand of a judge
We approve the parties’ stipulation that Judge Miller behaved inappropriately in the lobby outside his courtroom, that Judge Miller’s conduct violated the Code of Judicial Conduct, and that the appropriate discipline is a public reprimand.
While the judge was presiding over a civil trial
the trial proceedings were interrupted continuously by loud noise from the public lobby outside of Judge Miller’s courtroom. The source of the sound was a result of many people congregating and not promptly disbursing [sic] from the public lobby at the conclusion of Judge William Altfield’s investiture ceremony, which had occurred in the ceremonial courtroom on the same floor.
After the bailiff and clerk's efforts to achieve quiet failed, the judge went into the lobby in robes
While trying to quiet the groups of people in the lobby, Judge Miller observed one person shaking her head while looking at him. Judge Miller believed she was telling him, “no,” indicating that she would not cooperate with his attempt to quiet the crowd. He acknowledged, however, that with hindsight she could have been shaking her head in disbelief over his behavior. Responding to what he believed was contemptuous behavior, Judge Miller approached the individual and shouted, “Do not shake your head at me.” Judge Miller then twice threatened the person with contempt, demanding to know, “Do you want to be held in contempt?” When the person answered that “no” she did not want to be held in contempt, Judge Miller continued to question the individual asking her name and whether she was employed in the Courthouse, before going back into his courtroom. Two judges who were standing and conversing with the individual, who is employed by the 11th Judicial Circuit as an Assistant General Counsel, observed that she did not yell or say anything disrespectful, and, in their opinion, did not act in any way contemptuous.
The court here found mitigation
Although it by no means excuses Judge Miller’s conduct, we are constrained to observe that the circumstances presented in this case arose only because a loud crowd disrupted trial court proceedings and persisted in their noisemaking after extended efforts were made to bring quiet so that the trial could go on. The lengthy disruption of that trial should never have occurred. Investiture ceremonies are significant events in the life of our courts, but they should not occasion the disruption of judicial business. The participation of judges or court staff in any such disruption of court proceedings is a matter of serious concern. Administrative measures should be taken to ensure that such problems do not recur.
The title of the post is a favorite song from childhood performed by Danny Kaye. (Mike Frisch)
Thursday, October 29, 2020
The Florida Judicial Ethics Advisory Committee blesses a judge's membership in the NAACP.
Opinion Number: 2020-22
Date of Issue: October 22, 2020
May a judge become a dues paying member of the NAACP?
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.
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.
Thursday, October 22, 2020
The Florida Judicial Ethics Advisory Committee has issued several new opinions
Opinion Number: 2020-18
Date of Issue: July 13, 2020
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.
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
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?
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 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.
Wednesday, October 21, 2020
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.
Thursday, October 15, 2020
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.
Thursday, October 8, 2020
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.
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)
Monday, October 5, 2020
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.