Wednesday, August 12, 2020

Judge Reprimanded For DUI

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

The Ohio Supreme Court today publicly reprimanded a Franklin County judge whose blood alcohol level was more than twice the legal limit when she was arrested for drunken driving.

In a unanimous per curiam opinion, the Supreme Court reprimanded Judge Monica E. Hawkins, whose arrest came shortly after taking office as a newly elected member of the domestic relations and juvenile branch of the Franklin County Common Pleas Court. The Supreme Court found Judge Hawkins violated the rules requiring judges to comply with the law and act at all times in a manner that promotes public confidence in the judiciary.

Judge Gets Lost Going Home
Judge Hawkins won election to the bench in 2018 and assumed the role in early 2019. On Jan. 31, 2019, a Pickerington police officer responded to a 911 call around 8:30 p.m. alerting them to a suspected intoxicated driver. When stopped by the officer, Judge Hawkins told her she had gotten lost while driving home.

The officer smelled alcohol emanating from the vehicle and asked Judge Hawkins if she had been drinking. She replied, “No.” When the officer stated she smelled alcohol, Judge Hawkins replied, “No, I’m a judge and I was trying to get home but I just got lost.”

The officer noted a large knot on the judge’s forehead, which appeared to be bleeding. She asked the judge about the head injury, and she denied having an injury. When asked for her identification and proof of insurance, Judge Hawkins produced a driver’s  license and a health-insurance card. The officer observed vomit on her coat and a large amount of vomit on the driver’s side floor of the vehicle.

A police sergeant arrived on the scene and approached the vehicle. Judge Hawkins handed her cell phone to the sergeant. Judge Hawkins’ bailiff was on the phone and was inquiring about the location of the incident so she could go to the scene.

Judge Hawkins was removed from her vehicle and failed several field sobriety tests. She was arrested for operating a vehicle while under the influence (OVI).

Judge Resists Intoxication Tests
At the police station, Judge Hawkins refused to provide a breath sample, and the arresting officer informed her she would seek a warrant to draw blood. The judge was transported to a hospital to obtain a blood sample, but refused to submit to a blood draw. She was informed by police that they obtained a warrant and she could not refuse. Eventually, four hospital security officers held her down until blood was drawn.

She was then charged with OVI and a marked-lanes violation. A report would later confirm her blood alcohol level was 0.199, more than twice the legal limit of .08 percent.

In Fairfield Municipal Court, Judge Hawkins pleaded guilty to OVI, and the remaining charges were dismissed . She was sentenced to 90 days in jail, with 87 days suspended, and the opportunity to complete a 72-hour driver-intervention program in lieu of the three days in jail. She also paid a $375 fine, had her driver’s license suspended for one year, and was placed on one year of probation.

Conviction Leads to Rule Violation
Based on the conviction , the Office of Disciplinary Counsel filed a complaint in August 2019 with the Board of Professional Conduct alleging Judge Hawkins violated two rules governing the conduct of Ohio judges.

The disciplinary counsel and Judge Hawkins suggested a public reprimand, and the board recommended that sanction to the Supreme Court.

“Operating a vehicle while intoxicated imperils public safety and public confidence in the integrity of the judiciary,” the Court’s opinion stated.

The opinion noted other jurists have been reprimanded for driving under the influence, and judges have been reprimanded when, like Judge Hawkins, they invoked their status as a judge during their OVI arrests.

Along with the reprimand, Judge Hawkins was ordered to pay the costs of the disciplinary proceedings.

2020-0468Disciplinary Counsel v. HawkinsSlip Opinion No. 2020-Ohio-4023.

(Mike Frisch)

August 12, 2020 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, August 6, 2020

New Jersey Supreme Court Sanctions Judge Over Impassioned Dissent

The New Jersey Supreme Court rejected the proposed removal of a judge made by the Advisory Committee on Judicial Conduct in favor of the three-month suspension.

The allegations involved harboring a fugitive.

The case began when the judge reported that her car was missing.

The investigating officers of Woodbridge Township found two warrants against her live-in boyfriend. 

The majority conclusions on the misconduct

In short, clear and convincing evidence supports the Presenter’s contention that respondent disclosed very little of what she knew about Prontnicki’s location, activities, and plans to the police. The evidence supports the inference that respondent acted not at the direction of the police or because she feared harm, but in the hope that she could assist Prontnicki and preserve their relationship while maintaining her judicial career...

Relying only on clear and convincing evidence, we view respondent’s communications with the WTPD on June 10 and 11, 2013 to fall short of the high standards imposed by the Code. Respondent clearly understood that the charges against Prontnicki were serious and that the police viewed public safety to be at risk while he remained at large. Yet she disclosed only minimal information about her extensive contacts with Prontnicki. Based on her conversations with Prontnicki, her texts to her friends, and her communications with the WTPD, it is apparent that respondent’s priorities were her personal concerns -- particularly her relationship with Prontnicki --  not her duty to the public.

Respondent was undoubtedly in a difficult situation during the two days at issue here. Alarmed by the disappearance of her car and exhausted from searching for it, and believing that she might be pregnant with a child fathered by Prontnicki, she was shocked by the officers’ revelation of his outstanding warrants and suspended driver’s license. It is understandable that respondent was upset as those disturbing events unfolded.

As a judge, however, respondent was not at liberty to address her circumstances with only herself and her personal relationships in mind. The WTPD was searching for an individual who allegedly robbed a pharmacy by threatening a pharmacist with a crowbar. A judge had found probable cause and issued a warrant for his arrest, and WTPD officers were charged to execute that warrant in the interest of public safety. It was incumbent on respondent to fully cooperate with law enforcement in their search for Prontnicki, notwithstanding her distressing personal circumstances.

As the evidence makes clear, respondent did not do so.

Dissenting Justice Albin concludes that

a fair reading of the record reveals that Judge Brady was the victim of a police investigation run amok -- an investigation that was built on an unfounded assumption and that cast aside inconvenient facts...

Judge Brady was a judicial officer, not a deputized member of the Woodbridge Township Police Department. She did not harbor a criminal, and she did not obstruct an investigation. She did not have the reporting duties of a law enforcement official. That is a line blurred in the majority opinion.

From the court's headnote

Respondent was sworn in as a Judge on April 5, 2013. On June 11, 2013, officers of the Woodbridge Township Police Department (WTPD) arrested respondent at her home for “knowingly harboring Jason Prontnicki, a known fugitive,” in her residence. The Court suspended respondent from her judicial duties without pay and referred the matter to the ACJC. The three criminal charges against respondent were eventually dropped, and the Court reinstated respondent to her judicial duties in March 2018.

In May 2018, the ACJC issued a Complaint charging respondent with conduct that violated Canon 1, Rule 1.1; Canon 2, Rules 2.1 and 2.3(A); and Canon 5, Rule 5.1(A) of the Code. At the ACJC hearing, the following facts emerged.

On June 10, 2013, respondent had been a Superior Court judge for approximately two months. She and Prontnicki had been involved in a romantic relationship for about six months, and Prontnicki was living in respondent’s home.

On that morning, respondent appeared at WTPD headquarters to report her car missing. She met with two police sergeants and Officer Robert Bartko. Respondent told the officers that Prontnicki, her boyfriend, had taken one of her cars without permission. The officers explained the procedure to file a criminal complaint against Prontnicki, but respondent declined to do so. While respondent was at the station, officers learned there were two open warrants for Prontnicki’s arrest, one for a violent crime, and that his driver’s license had been suspended. The officers told respondent about Prontnicki’s open warrants and suspended license. The police report reflects that the officers told respondent that as “an officer of the court,” she was required to report to them “if and when” Prontnicki returned with the car, so they could arrest him.

Shortly after respondent returned home, Prontnicki called her. Respondent testified that Prontnicki told her he would return her car, that he denied knowing of any warrants or a suspended license, and that she told him that he needed to “go to the police and take care of it right away.” It is undisputed that -- after speaking with Prontnicki -- respondent did not call the police to advise them Prontnicki would be at her home.

Respondent testified that, when Prontnicki arrived, he walked past her father into the house. Respondent said she was “a little surprised and shocked and then fearful,” and that she told Prontnicki to leave. Nonetheless, she and Prontnicki talked in her garage for about an hour, joined by her father for the final fifteen minutes of their conversation.

Approximately fifteen minutes after Prontnicki left her home, respondent called the WTPD, asked to speak with Bartko, and left a message on Bartko’s voicemail. Respondent notified police that her car had been returned, but other contents of that message are disputed. Respondent contended before the ACJC and the Court that the WTPD tampered with the voicemail to delete part of her message.

The next morning, on June 11, 2013, Prontnicki called respondent, and they spoke for more than two and a half hours. Respondent testified that during that call, Prontnicki confirmed he would be staying with his brother and said he needed to retrieve belongings from her home. They made an appointment for that afternoon, and Prontnicki called later to confirm their appointment. Respondent did not notify the police after either call.

Respondent left a second message for Officer Bartko later that afternoon, confirming that her car had been returned. Respondent contends that the WTPD also tampered with and intentionally deleted parts of her second voicemail. Bartko did not retrieve either of respondent’s messages until after respondent was arrested.

Meanwhile, WTPD officers conducted surveillance of respondent’s residence during the afternoon of June 11, 2013. When Prontnicki left her house, a WTPD officer arrested Prontnicki. Shortly after his arrest, members of the WTPD went to respondent’s home and arrested her for hindering Prontnicki’s apprehension. One testified that when respondent was arrested, she said, “I’ve been vetted, take the cuffs off.” According to the police report, respondent directed officers to take the handcuffs off of her, then asked to be handcuffed with her hands in front of her rather than behind her. The officers refused.

Later that evening, officers and an assistant prosecutor presented a Superior Court judge a complaint warrant alleging that respondent had “harbor[ed]” Prontnicki in her residence “for approximately 1 hour and never ma[de] any attempt to contact law enforcement.” Although one officer was aware that respondent had left voicemails for Bartko, he did not disclose those voicemails to the judge. The judge signed the complaint warrant. Before the ACJC, an officer conceded that the statement in the complaint warrant that respondent never tried to contact law enforcement was inaccurate.

At the ACJC hearing, both respondent and the Presenter offered expert testimony by psychologists and audio engineering experts. The ACJC found by clear and convincing evidence that respondent violated the Code. With respect to contested facts and the two issues that the parties’ experts disputed, the ACJC made findings in the Presenter’s favor. The ACJC recommended respondent’s removal from judicial office.

Respondent moved before the Court to dismiss the Presentment, or, in the alternative, to modify the ACJC’s recommendation that she be removed from office. After oral argument on that motion, the Court entered an Order to Show Cause denying the motion to dismiss and requiring respondent to show cause “why she should not be publicly disciplined through the imposition of an appropriate sanction that is less than removal, the Court having determined on its review of the matter that the appropriate quantum of discipline shall not include removal.”

HELD: The Court concurs in substantial part with the ACJC’s factual findings and holds that clear and convincing evidence supports the ACJC’s determination that respondent committed the Code violations charged. The Court modifies the ACJC’s recommendation that respondent be removed from judicial office, however, and instead imposes on respondent a three-month suspension from judicial duties...

JUSTICE ALBIN, dissenting, is of the view that, based on the record, Judge Brady did not harbor a fugitive or obstruct a police investigation. Nor did her conduct demean the judiciary. Justice Albin stresses that Judge Brady’s conduct should not be viewed from the sterile, twenty/twenty perspective of hindsight, but rather from that of a vulnerable human being, fatigued and frightened, in the grip of overwhelming stress, who, in the moment, made decisions that, even if flawed, do not rise to a level that warrants discipline. In Justice Albin’s view, Judge Brady is the victim of a misguided and failed criminal prosecution that has left her career as a judge in ruins and of a disciplinary review that has overlooked police malfeasance, her good-faith efforts, and the human element. Because he does not believe that the charges against Judge Brady have been sustained by clear and convincing evidence, Justice Albin finds that the imposition of discipline is not justified.

JUSTICE LaVECCHIA, dissenting, is not persuaded there is clear and convincing evidence in this record to sustain disciplinary charges.

Justice Fernandez-Vina

I would dissent from the majority’s determination that Carlia M. Brady’s conduct warrants only a three-month suspension. I agree with the ACJC’s well reasoned Presentment recommending removal from the bench.

I also find that the majority’s analysis today equally supports removal from the bench beyond a reasonable doubt. Since removal from the bench is not available as a sanction, I concur with the majority’s decision.

From the dissent of Justice Albin

Today’s majority decision is a sad epilogue to Judge Carlia Brady’s seven-year nightmare journey through the criminal justice system and the judicial disciplinary process. Seven years ago, Judge Brady was the quintessential American success story -- a Filipino-American immigrant, who became an accomplished lawyer and rose from the ranks of the Bar to become a Superior Court judge. Just several months after her judicial appointment, her career, her reputation, her health -- her life -- would be in ruins, the victim of overzealous Woodbridge Township police officers, who filed criminal charges that could not be sustained in court.

Those dismissed criminal charges and the current judicial disciplinary charges stem from a tumultuous, thirty-six-hour period in Judge Brady’s life. During that period, while reporting to the police the theft of her car, she learned that her live-in boyfriend, the father of her unborn child -- the man with whom she had planned a future -- was a potentially dangerous criminal and wanted for the robbery of a drugstore. In a state of shock -- with her reality shattered and her trust betrayed -- fatigued by twenty-four sleepless hours, and stressed about her pregnancy, Judge Brady should have been the object of at least a modicum of police solicitude. Instead, she became the target of a hapless police investigation designed to make the case that she was harboring a criminal.

Justice Albin tells the judge's story and the facts of the situation in exacting detail.

Northjersey.com profiled Justice Albin. (Mike Frisch)

August 6, 2020 in Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, July 16, 2020

Nevada Rejects Reprimand Of Judge

The Nevada Supreme Court declined to impose a public reprimand of a judge as proposed by the Commission on Judicial Discipline

we consider whether a family court judge violated the Nevada Code of Judicial Conduct and examine the appropriate sanction for a violation of the Code of Judicial Conduct where the violation is not knowing or deliberate and aggravating factors are not present...

The discipline stems from one of Judge Hughes cases in which she addressed several motions by a father seeking to enforce the court's child custody orders and entered an order purportedly holding the mother in contempt and changing custody of the minor child from the mother to the father. The Commission found the change in custody was entered as a contempt sanction and concluded that Judge Hughes had thus violated canons of the Code of Judicial Conduct. We do not consider this interpretation of Judge Hughes' orders to be sound. We conclude that the Commission misconstrued her orders by disregarding relevant portions of each, failing to consider their effects, and relying inappropriately on pronouncements in court minutes.

The complainant in the matter was the mother. 

The court here took the commission to task on its interpretation of the record. 

The case is In the Matter 0f the Honorable Rena G. Hughes. (Mike Frisch)

July 16, 2020 in Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, July 9, 2020

Yoga Pants And Other Remarks Draw Admonishment

The New York Commission on Judicial Conduct has admonished a town court justice for remarks made in connection with pending matters and to an assistant district attorney

Respondent stipulated that his disparaging remarks regarding the Department of Probation, one of its employees and an employee of the Department of Health while presiding over a violation of probation matter were improper and undermined public confidence in the impartiality of the judiciary. Similarly, respondent admitted that his comment that the daughter of a litigant was “dressing for attention” was also inappropriate. Respondent compounded his misconduct when, after it was noted that the litigant’s daughter wore yoga pants to court, respondent told the ADA during a case conference, “if you wear yoga pants to court, it’s okay with me.” When the ADA did not respond to his improper comment, respondent, who understood at the time that his remark was inappropriate, stated, “Are there cameras in here?”

It was discourteous and unacceptable for respondent to tell an attorney appearing before him that she could wear yoga pants to court. This comment was particularly inappropriate since respondent had just made a remark by which he meant that the litigant’s daughter who had worn yoga pants to court did so “for men to look at her.”

Respondent demeaned the ADA and detracted from the professionalism of the proceeding over which he was presiding. In addition, respondent’s comments to the ADA and her friend asking whether they “want[ed] a room” and offering to “turn off the lights” were also demeaning and inappropriate for a judge to make in a courtroom. By his conduct, respondent violated his ethical responsibilities.

More than 30 years ago, the Commission made clear that it was inappropriate for a judge to make comments regarding the appearance of female attorneys even if such comments were intended to be humorous.

The justice accepted that he should have recused himself in the probation matter. 

The stipulation of facts is linked here. (Mike Frisch)

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

Wednesday, July 1, 2020

"The Teflon Robe"

A disturbing survey of the consequences of judicial misconduct from Reuters by MICHAEL BERENS and JOHN SHIFFMAN in Montgomery, Alabama

In the first comprehensive accounting of judicial misconduct nationally, Reuters reviewed 1,509 cases from the last dozen years – 2008 through 2019 – in which judges resigned, retired or were publicly disciplined following accusations of misconduct. In addition, reporters identified another 3,613 cases from 2008 through 2018 in which states disciplined wayward judges but kept hidden from the public key details of their offenses – including the identities of the judges themselves.

All told, 9 of every 10 judges were allowed to return to the bench after they were sanctioned for misconduct, Reuters determined. They included a California judge who had sex in his courthouse chambers, once with his former law intern and separately with an attorney; a New York judge who berated domestic violence victims; and a Maryland judge who, after his arrest for driving drunk, was allowed to return to the bench provided he took a Breathalyzer test before each appearance.

The news agency’s findings reveal an “excessively” forgiving judicial disciplinary system, said Stephen Gillers, a law professor at New York University who writes about judicial ethics. Although punishment short of removal from the bench is appropriate for most misconduct cases, Gillers said, the public “would be appalled at some of the lenient treatment judges get” for substantial transgressions.

Among the cases from the past year alone:

In Utah, a judge texted a video of a man’s scrotum to court clerks. He was reprimanded but remains on the bench.

In Indiana, three judges attending a conference last spring got drunk and sparked a 3 a.m. brawl outside a White Castle fast-food restaurant that ended with two of the judges shot. Although the state supreme court found the three judges had “discredited the entire Indiana judiciary,” each returned to the bench after a suspension.

In Texas, a judge burst in on jurors deliberating the case of a woman charged with sex trafficking and declared that God told him the defendant was innocent. The offending judge received a warning and returned to the bench. The defendant was convicted after a new judge took over the case.

“There are certain things where there should be a level of zero tolerance,” the jury foreman, Mark House, told Reuters. The judge should have been fined, House said, and kicked off the bench. “There is no justice, because he is still doing his job.”

Judicial misconduct specialists say such behavior has the potential to erode trust in America’s courts and, absent tough consequences, could give judges license to behave with impunity.

“When you see cases like that, the public starts to wonder about the integrity and honesty of the system,” said Steve Scheckman, a lawyer who directed Louisiana’s oversight agency and served as deputy director of New York’s. “It looks like a good ol’ boys club.”

(Mike Frisch)

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

Tuesday, June 23, 2020

Judging A Judge

In a matter involving allegations against a sitting judge, the Oklahoma Supreme Court ordered that the judge be publicly reprimanded, publicly admonished, deferred final discipline and probation

the Petition is hereby adopted and the Chief Justice is authorized to execute and to file the Petition in the Court on the Judiciary. 

The petition is linked here. 

The court's order in part

 Judge Coleman's admitted and unexcused violations of the Ethics Commission rules governing campaign financing and reporting are another matter. These rules protect the integrity of the election process. Compliance with these rules is a duty that every candidate, especially candidates for judicial office, owes to the people and electorate of this state. While Judge Coleman's efforts to rectify her delinquent reports is commendable, they do not relieve her of accountability and discipline for this serious violation of the Code of Judicial Conduct. In order to deter Judge Coleman and future candidates for judicial office from failing to comply with Ethics Commission campaign rules, we hereby Reprimand Judge Coleman for this violation and will make this Reprimand public by publishing this opinion.

 Judge Coleman's neglect to pay over sixty parking tickets, and similar neglect to attend to various county, state and federal tax obligations for several years, reflect adversely upon her judicial service, because such neglect raises a reasonable concern that she may likewise neglect her judicial duties. While her belated payment of the parking tickets and recent efforts to rectify her tax delinquencies demonstrate a sense of responsibility to attend to important matters, this Court believes an Admonishment is warranted to impress upon Judge Coleman the imperative of timely addressing all personal legal obligations that arise during or reflect upon her judicial service. As in the case of the Reprimand for failure to timely file Ethics Commission reports, this Admonishment is made public by publication of this order.

The last issue this Court must address is the pending felony charge that arose from Judge Coleman's neglect of her state tax obligations. This Court finds that final discipline should be deferred until this charge is resolved. In the meantime, Judge Coleman is on Probation with conditions (1) to report monthly to the Council on Judicial Complaints concerning the status of the various tax delinquencies, (2) to complete at least five mentoring sessions pending final discipline with Retired Justice Daniel Boudreau, Retired Judge April Sellers White, or another experienced judge and (3) to comply with all local, state and federal laws, and the Code of Judicial Conduct. Failure to comply with these conditions for deferred final discipline can be the basis for additional discipline and the Council on Judicial Complaints is authorized to bring any breach of these conditions to this Court through the complaint process provided by the Rules Governing Complaints on Judicial Misconduct.

RESPONDENT PUBLICLY REPRIMANDED, PUBLICLY ADMONISHED, FINAL DISCIPLINE DEFERRED, PROBATION WITH CONDITIONS

The disagreement on the relief

REIF, S.J., with whom COLBERT, J., joins, concurring in part and dissenting in part

I concur in the decision to file a petition invoking the jurisdiction of the Trial Division of the Court on the Judiciary. I believe a trial is necessary to resolve disputed allegations of judicial misconduct on the part of District Judge Kendra Coleman (Respondent). I write separately to emphasize that the allegations of judicial misconduct set forth in the petition are not accusations by this Court, but represent conclusions drawn by the Council on Judicial Complaints, following the Council's investigation of complaints against Respondent...

The first report dealt with Respondent's failure to timely fulfill personal duties regarding parking tickets, tax returns and campaign reporting, and events involving her conduct as a judge. She has not disputed her neglect of the personal obligations or the occurrence of the events involving her judicial conduct. She has, however, steadfastly maintained that none of these instances constitute a willful violation of the Code of Judicial Conduct or other legal grounds that warrant removal from office. A majority of this Court assumed the truth of the matters set forth in the report and found that Respondent's omissions and conduct did not rise to a ground for removal as a matter of law. The majority did find discipline was appropriate and reprimanded Respondent for failing to timely file campaign reports, admonished her to be diligent in fulfillment of personal obligations and placed her on probation pending resolution of a felony charge related to her failure to file a tax return. One of the conditions of this probation was that Respondent comply with the Code of Judicial Conduct.

The second report presents a wide ranging group of complaints of misconduct and alleged violations of the Code of Judicial Conduct. They range from the serious (alleged oppressive treatment of attorneys and parties) to the trivial (wearing a tee shirt to a judges meeting and rearranging chairs in her courtroom). Unlike the first report, assuming the truth of the matters set forth in the second report cannot alone lead to the appropriate disposition of the complaints therein. In her response, Respondent has sufficiently raised a question of whether the Council's findings of fact and conclusions of law are the only outcomes that reasonable minds might reach from the record. In addition, Respondent disputes that many of the events transpired as related in the report. Moreover, the disputed issue of whether Respondent violated any provisions in the Code of Judicial Conduct must be independently determined before any decision can be made that Respondent violated her probation. If the Trial Division of the Court on the Judiciary were to find Respondent committed one or more violations of Code of Judicial Conduct as recounted in the second report, such a violation would terminate her probation and be relevant to the ultimate issue of removal. 

Finally, I dissent to recommending suspension pending trial of the complaints against Respondent. Proceedings for removal are penal in nature and predicated upon wrongdoing. Any judge or other elected office holder who is subject to removal proceedings should have the benefit of being presumed innocent and afforded every reasonable measure of due process prior to any sanction being imposed that interferes with performance of the duties of their office.

WINCHESTER, J., with whom KANE, J. and WISEMAN, S.J., join, dissenting:

The Council on Judicial Complaints thoroughly investigated the numerous allegations of misconduct against Judge Coleman, including a review of all evidence presented and the testimony from several witnesses. The Council found multiple violations of the Code of Judicial Conduct worthy of her removal from office. Pursuant to 20 O.S.2011, § 1658, the Council recommended her removal and referred the matter to this Court for further proceedings.

I would refer this matter to the Court on the Judiciary for trial, which is the appropriate next step given the extensive evidence of the appearance of impropriety. I will not minimize blatant misconduct. While the various alleged infractions might not necessitate removal from office when considered individually, accumulatively they indicate a clear pattern of disrespect for the judicial office. I dissent from the majority's decision today because I believe Judge Coleman's actions warrant a trial on the matter.

In her short time on the bench, a span of less than one year, Judge Coleman has been the subject of numerous reports. The Council heard from several witnesses and reviewed all the evidence submitted, determining that the multiple instances of misconduct required Judge Coleman's removal from office. The Council ultimately found that Judge Coleman lacked the judicial temperament requisite of a judge, was guilty of oppression in office, and failed to follow the law and appreciate the importance of a fair and impartial judiciary.

If found to be true, the accumulation and sheer numerosity of the allegations against her reflect a pattern of lack of integrity or respect for the law. The majority's decision shields Judge Coleman's actions from review by her peers and erodes the confidence of her fellow judges and the public in the judicial system's willingness to discipline its own members. Accordingly, I dissent.

Kane, J., with whom Wiseman, S.J. joins, dissenting:

The Council on Judicial Complaints ("the Council") has submitted a recommendation for the Supreme Court to file a Petition to convene the trial division of the Court on the Judiciary ("the Court on the Judiciary") regarding allegations against the respondent judge. A majority of this Court concludes that a more proper exercise of our discretion in this matter would be to divert the subject of the proceedings from the statutory and constitutional processes in place, and proceed, instead, with an ad hoc Order, tailored to the responding judge, based upon the alleged facts suggested in the Council's report, without the benefit of a trial.

While I believe that this Court does have the power to undertake relief in the nature proposed by the majority, I do not believe that this exercise of power has precedence, and I further do not believe that it is a wise or warranted exercise of our power under the facts presented in this case. I believe that a Petition, based upon the concerns expressed by the Council on Judicial Complaints' report, should have been prepared and presented to the Court on the Judiciary for a trial. I therefore dissent.

(Mike Frisch)

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

Profane Justice Removed

The New York Court of Appeals accepted the removal of a village court justice

Petitioner has been a Justice of the Northport Village Court in Suffolk County, a part time position, since 1994. He is an attorney who, during the relevant time period, also maintained a private law practice. The Commission’s formal written complaint alleged, among other things, that petitioner repeatedly used degrading and profane language in communications with his legal clients, whom he represented through his private law practice. The charge against him is based, in large part, on conduct that occurred during his representation of two clients in a Family Court matter against their daughter in which the clients were seeking visitation with their grandchild. Over the course of several months, petitioner sent a series of emails to his clients providing legal advice in which he repeatedly insulted other participants in the legal process, including a litigant, opposing counsel, and the presiding court attorney referee, using vulgar and sexist terms. Among other things, petitioner used an extremely crude gender-based slur to describe opposing counsel.

The court

Here, petitioner’s statements were manifestly vulgar and offensive, and his repeated use of such language in written communications to insult and demean others involved in the legal process showed a pervasive disrespect for the system, conveyed a perception of disdain for the legal system, and indicated that he is unable to maintain the high standard of conduct we demand of judges. Petitioner repeatedly denigrated a litigant, opposing counsel, and the presiding court attorney referee while acting as an officer of the court representing clients in an ongoing litigation—a professional function integral to our legal system. Indeed, his derogatory comments impugned not just the particular referee involved in this case but all judges, and with it, the judiciary. In this context, petitioner’s conduct undermined the dignity and integrity of the judicial system. Moreover, his use of an intensely degrading and “vile” (Matter of Assini, 94 NY2d 26, 29 [1999]) gendered slur to describe a female attorney, as well as petitioner’s demeaning reference to her as “eyelashes,” are especially disturbing; it is critical to our judicial system that judges “conduct themselves in such a way that the public can perceive and continue to rely upon the impartiality of those who have been chosen to pass judgment on legal matters involving  their lives, liberty and property” (Matter of Duckman, 92 NY2d 141, 153 [1998] [internal quotation marks and citation omitted]). Petitioner’s misconduct cannot be explained as an isolated or spontaneous slip of the tongue, as the statements—repeated multiple times— were included in deliberative, written communications petitioner made to these clients relating to their legal representation. Such a pattern of conduct, engaged in over several months and combined with a prior caution by the Commission for making sarcastic and disrespectful comments to litigants during a court proceeding, constitutes an unacceptable and egregious pattern of injudicious behavior that warrants removal.

Under these circumstances, the fact that petitioner’s comments were contained in emails sent to only two clients, which he believed would not be shared, does not excuse the wrongfulness of his conduct. There is no question that judges are accountable for their conduct “at all times,” including in conversations off the bench (Matter of Backal, 87 NY2d 1, 8 [1995] [citations omitted]).

Syracuse.com reported on the conduct

Senzer, who was representing an old acquaintance in a Family Court matter, unleashed a torrent of “vile” language over the course of nine emails in 2014 and 2015, the commission found.

  • Called his client’s daughter a “b*tch” several times, and “*sshole” once
  • Called the daughter’s attorney a “cu*t on wheels” and “eyelashes”
  • Called employees at his client’s grandson’s school “*ssholes"
  • Called the daughter and her ex-husband “two scumbags”
  • Called a “judge” (actually a court referee) an “*sshole”

In one case, Senzer even told his client not to quote his vile language. The other “lawyer is a cu*t on wheels (sorry for the profanity ... and don’t quote me), so be prepared."

Senzer admitted to the “atrocious” language, but argued that he should keep his job because the emails were personal and insisted he was just trying to show empathy for his client. He added that it hadn’t occurred to him that the language had any bearing on his role as judge.

(Mike Frisch)

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

Tuesday, June 16, 2020

Judge's Facebook Friendship With Litigant Violated Due Process

A divided Wisconsin Supreme Court has held that a judge's  undisclosed Facebook interaction with a litigant amounted to a violation of due process. 

This case presents an issue of first impression: an allegation of judicial bias arising from a circuit court judge's undisclosed social media connection with a litigant.

In this case, a circuit court judge accepted a Facebook "friend request" from the mother in a custody dispute after a contested hearing, but before rendering a decision.  In the course of their 25-day Facebook "friendship," the mother "liked" 16 of the judge's Facebook posts, "loved" two of his posts, commented on two of his posts, and "shared" and "liked" several third-party posts related to an issue that was contested at the hearing. The judge never disclosed the Facebook friendship or the communications, and he ultimately ruled entirely in the mother's favor.

After discovering the Facebook friendship, the father moved the circuit court for reconsideration, requesting judicial disqualification and a new hearing. At the reconsideration hearing, the judge admitted to the Facebook interactions between himself and the mother. However, he denied the motion and claimed that he was impartial because he had already decided on his ruling prior to accepting her friend request.

The court of appeals reversed the circuit court's denial of the motion for reconsideration and remanded the case with directions that it proceed before a different circuit court judge.

We conclude that the extreme facts of this case rebut the presumption of judicial impartiality and establish a due process violation. Accordingly, we affirm the court of appeals.

The "appearance of impropriety" standard as a basis to recuse did not command a majority. 

The underlying case involved a custody dispute

Carroll sought sole legal custody, primary physical placement, child support payments, and a change in residence. Carroll's motion and supporting affidavits alleged that Miller engaged in acts of domestic violence against Carroll, and included a copy of a domestic abuse injunction that Carroll obtained that same month. Carroll also alleged that Miller failed to adequately parent and discipline Bruce. Miller vigorously opposed the motion and disputed the allegations of domestic violence. The case was assigned to Judge Michael Bitney.

Judge Bitney conducted a highly contested two-day evidentiary hearing over June 7-8, 2017, that included the testimony of 15 witnesses.

Her friend request came after the hearing

During the 25 days between Judge Bitney's acceptance of Carroll's friend request and his issuance of a written decision entirely in her favor, Carroll engaged with and "reacted to" at least 20 of Judge Bitney's Facebook posts.  The bulk of Carroll's "reactions" to Judge Bitney's posts were "likes" to prayers and Bible verses that he posted.

Additionally, Carroll "loved" one of Judge Bitney's posts reciting a Bible verse and another post regarding "advice" to children and grandchildren.  Carroll also commented on two of Judge Bitney's posts related to his knee surgery: "Prayers on a healthy recovery Judge!!" and "Hope u get some rest and feel better as the days go on." Judge Bitney would have received a notification from Facebook each time Carroll reacted to one of his posts. Judge Bitney also would have received a notification from Facebook each time Carroll commented on one of his posts.

In addition to "reacting" to and engaging with at least 20 of Judge Bitney's posts, Carroll posted on her Facebook page about the topic of domestic violence, which was at issue in the contested hearing.

The friendship was discovered by the guardian ad litem

While viewing Carroll's post, the GAL inadvertently discovered that Carroll was Facebook friends with Judge Bitney.  The GAL indicated that she "felt a duty" to immediately alert Miller's counsel of the Facebook friendship and Carroll's recent Facebook post.

The court

We begin with background information on what a Facebook "friendship" entails. We next articulate the standard for resolving when the probability of actual bias rises to the level of a due process violation, and apply that analysis to the facts of this case.

...We presume that Judge Bitney acted fairly, impartially, and without prejudice. See Herrmann, 364 Wis. 2d 336, ¶24. We consider the totality of the circumstances and conclude that Miller has rebutted this presumption by showing "a serious risk of actual bias." Caperton, 556 U.S. at 884.18 These circumstances include: (1) the timing of the Facebook friend request and Judge Bitney's affirmative acceptance; (2) the volume of Carroll's Facebook activity and likelihood Judge Bitney viewed her posts and comments; (3) the content of the Facebook activity as it related to the context and nature of the pending proceeding; and (4) Judge Bitney's lack of disclosure.

Judge Ann Walsh Bradley concurred

Although I join the majority opinion, I write separately because its analysis fails to discuss the role that appearance of bias can play in the due process analysis. Additionally, it neglects to inform the reader that its analysis is at odds with this court's "hands-off" approach in certain due process challenges. The following provides the rest of the story...

In sum, I write separately to call attention to the critical role the appearance of bias can play in the due process analysis. I further write to address the impact of the present case on recusal practice in this court and statewide.

As did Justice Annette Ziegler

I join the majority because it does not adopt the standard suggested in Justice Ann Walsh Bradley's concurrence. Rather, the majority opinion is consistent with the language of the United States Supreme Court in Caperton, my writing (joined by two other justices) in Herrmann, and my writing in Allen.

...I also write separately, in light of this case, to caution the Wisconsin bench about the hazards of electronic social media, and Facebook in particular. I caution judges to avoid using social media such as Facebook unless significant safeguards are in place to avoid a situation like that present here. If a judge chooses to participate in social media, then additional——not fewer——precautions must be taken. An appearance of impropriety is not itself sufficient to constitute a due process violation. But more is present here. As a result, I respectfully concur.

There was more than an appearance issue

Judge Bitney affirmatively chose to let Carroll, a party to a highly contested child custody hearing over which he presided, become his Facebook friend. Judge Bitney personally and affirmatively accepted her friendship request. Even worse, since Carroll's personal life, character, and parental fitness were relevant to the custody dispute, Judge Bitney affirmatively accepted access to off-record and relevant facts about Carroll when he accepted her friend request. Judge Bitney did not disclose his Facebook friendship with Carroll. He did not disclose any of their Facebook interactions. Judge Bitney's conduct in allowing a party such access in this case was not just improper. It was extraordinary.

She advocates for careful use of social media by judges

I strongly urge my colleagues on the bench to weigh the advantages and disadvantages of using electronic social media like Facebook.

...I also write separately, in light of this case, to caution the Wisconsin bench about the hazards of electronic social media, and Facebook in particular. I caution judges to avoid using social media such as Facebook unless significant safeguards are in place to avoid a situation like that present here. If a judge chooses to participate in social media, then additional——not fewer——precautions must be taken. An appearance of impropriety is not itself sufficient to constitute a due process violation. But more is present here.

BRIAN HAGEDORN, J. (dissenting).

For most of American history, the United States Constitution was understood to say close to nothing about judicial recusal. This area of law, with a few extremely narrow exceptions, was left to state regulation and oversight. But as it has in many areas, the judiciary began to expand the constitutional footprint, inch by inch, and lately, step by step. Today's decision continues the march away from the original public meaning of our Constitution, and greatly risks merging ordinary judicial recusal questions with the narrow proscriptions of the Due Process Clause.

...The record before us doesn't tell us much, but what it does tell suggests this is not a needle-in-the-haystack judicial recusal case; it is quite ordinary. The thrust of the recusal argument rests on the fact that Judge Bitney accepted a Facebook friend request from a party while a case was pending, and did not disclose it. But that's rather sparse evidence from which to conclude a certain ethics violation occurred, much less a due process problem.

Further

It is important to remember that judges are not isolated members of the community. They read the news. They receive unsolicited and stray comments about cases or parties. Judges may, particularly in smaller communities, know a party's family history from another case, or have heard stories from judicial colleagues about a party before them. Judges may go to church with parties before them, volunteer with the local Rotary chapter, or be former high school football teammates with a party's father. Judges are people too. And it is precisely these sorts of ordinary, and generally unproblematic, life interactions that undergird the strong presumption that judges are impartial. The very concept of an impartial judiciary depends upon the belief that judges can manage through their biases, news feeds, political supporters, former co-workers, and neighbors to render decisions without fear or favor to any party.

Justice Hagedorn invokes Chief Justice Roberts's parade of horribles from the Caperton dissent

Although this court must follow Caperton, it has no constitutional warrant to expand it. The more this court takes ordinary recusal questions and turns them into constitutional questions, the more we will see these claims. And the more we see these claims, the more recusal will become a litigation weapon (after all, a due process violation is structural error). And the more recusal becomes a litigation weapon, the more damage it does to the judiciary as a whole. The presumption that judges will follow the law regardless of their personal views and regardless of their associations is quickly being replaced by the presumption that judges are frail, impressionable, and not to be trusted. Make no mistake, today's decision will invite ever more Constitution-based recusal claims. And with it, faith in the judiciary will be undermined, not strengthened. With each new blessing of a new "just as bad as Caperton" recusal claim, the judiciary continues its constitutional takeover of new areas of law that the people, through their written Constitution, left to themselves.

Nothing in the original public meaning of our Constitution nor in Supreme Court precedent requires us to transform Judge Bitney's social media misstep into a constitutional controversy. I respectfully dissent.

I am authorized to state that Justices REBECCA GRASSL BRADLEY and DANIEL KELLY join this dissent except for footnote 1 and ¶¶120-24, but they do join footnote 3.

The lineup of the court's 77 page opinion 

DALLET, J., delivered the majority opinion of the Court, in which ROGGENSACK, C.J., and ZIEGLER, J., joined; and in which ANN WALSH BRADLEY, J., joined except for footnote 18. ANN WALSH BRADLEY, J., filed a concurring opinion. ZIEGLER, J., filed a concurring opinion. DALLET, J., filed a concurring opinion, in which HAGEDORN, J., joined. HAGEDORN, J., filed a dissenting opinion, in which REBECCA GRASSL BRADLEY, and KELLY, JJ., joined except for footnote 1 and ¶¶120-24, but do join footnote 3.

The ABA Journal reported on the circuit court decision. (Mike Frisch)

June 16, 2020 in Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, May 28, 2020

Foreward As Forearmed

The Florida Judicial Ethics Advisory Committee opines 

Opinion Number: 2020-11
Date of Issue: May 8, 2020

ISSUE

Whether a judge may write a foreword to a memoir written by a family member.

ANSWER: Yes.

FACTS

A family member of the inquiring judge asked the judge to write a foreword for the family member’s memoir. The foreword will not state that the judge is a judge. The memoir will be self-published through an online publishing company and will be available for sale on commercial websites.

Reasoning

First, they stated the judge should, and we suggest must, “maintain editorial control over the content of the foreword and should retain the right to review any biographical information that may be published in connection with the book even though in this case his/her official title will not appear in the book.” Similarly, in a prior opinion we discussed the need to maintain editorial control even after submission of a writing. See Fla. JEAC Ops. 12-34. Additionally, as with the Connecticut opinion, the inquiring judge stated that the foreword and memoir will not identify the inquiring judge as a judge. If it did our answer may be different. In that situation, it could be considered using the prestige of judicial office to promote another’s private interests, contrary to Canon 2B.

Second, they stated the judge must “review the entire contents of the book and satisfy him/herself that authoring a foreword to the book would not cast doubt on his/her impartiality in future cases or reflect a predisposition with respect to particular cases or issues or regarding any party or witness that may appear before the Judicial Official.”

Third, they suggested the judge must, at a minimum, disclose the relationship if the author appears as a party in a judicial proceeding before the judge.

If the judge satisfies these three conditions, and those we stated in prior opinions about judicial authors, the judge may write a foreword to a book. Of course, the judge must be mindful of the Florida Code of Judicial Conduct when doing so.

Another recent opinion

Opinion Number: 2020-12
Date of Issue: May 8, 2020

ISSUE

May a judge submit a letter to a law school on behalf of a student explaining unique family circumstances of which the judge has knowledge so that the student can maintain his financial aid?

ANSWER: Yes.

If the judge is permitted to write the letter, may it be done on judicial letterhead?

ANSWER: Yes.

FACTS

The inquiring judge was previously in private practice. During that time the judge represented a woman in family law proceedings that involved the woman’s husband and father of her son. Because of this representation, the judge has personal knowledge that husband/father became estranged from the family and his whereabouts are currently all but unknown. The son is now attending law school but to maintain his financial aid the school requires detailed information from both parents. Although the situation regarding the father has been explained to the school by the family, they still require letters from “objective” individuals outside the family confirming the father’s absence. The judge has been asked by the family to write such a letter to the law school so that the financial aid can continue.

Reasoning

While this situation cannot be said to be a letter of personal “recommendation,” it is comparable in that the judge will be sharing personal knowledge of an individual’s situation in order to assist that person in some endeavor not related to a judicial or administrative proceeding. For this reason we find no prohibition under the Canons that would prevent the judge from using judicial letterhead to respond to a request for information about a student’s predicament related to financial aid as long as it is based on personal knowledge. Further, the inquiring judge may write that letter to the school on judicial letterhead.

(Mike Frisch)

May 28, 2020 in Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, May 26, 2020

Not Fun And Games

The New Jersey Supreme Court has ordered the removal of a judge as described in the court's syllabus

Based on its review of the extensive record, the Court finds beyond a reasonable doubt that there is cause for removal. Because of Respondent’s multiple, serious acts of misconduct -- in particular, his inappropriate behavior in a matter involving an alleged victim of domestic violence -- the Court orders his removal from office.

Count I involves Respondent’s conduct during and after a hearing for a final restraining order. The plaintiff, an unrepresented litigant, alleged that the defendant threatened her life, sexually assaulted her, and made inappropriate comments to their five-year-old daughter. On the first day of the hearing, the plaintiff testified that defendant “force[d] himself on [her] to have sex with him.” She described that alleged attack as well as other events of alleged domestic violence. During cross-examination, defense counsel at one point asked the plaintiff if she had ever worked as an exotic dancer, which she admitted. Soon after, Respondent took over the questioning and asked the plaintiff at length about her efforts to stop the alleged assault, including whether she had tried to “[b]lock [her] body parts,” “[c]lose [her] legs,” “[c]all the police,” or “leave.”

No witness, alleged victim, or litigant should be treated that way in a court of law. As the ACJC found, the questions were “wholly unwarranted, discourteous and inappropriate.” The questions also shamed the alleged victim by intolerably suggesting she was to blame. Respondent claimed he was trying to help a “demoralized” witness on cross-examination and “get her re-engaged in the hearing.” That explanation does not square with the record. Beyond that, Respondent’s coarse questions about how the plaintiff responded during the alleged assault were not relevant. Sexual assault turns on the alleged aggressor’s use of physical force, not the victim’s state of mind or resistance.

Respondent’s comments to his court staff and law clerk after the hearing ended are just as problematic. He asked if they had “hear[d] the sex stuff” and said, “You think it’s all fun and games out here.” Respondent also said, “I am the master of on the record being able to talk about sex acts with a straight face.”

Judges set the tone for a courtroom. Especially when it comes to sensitive matters like domestic violence and sexual assault, that tone must be dignified, solemn, and respectful, not demeaning or sophomoric. Respondent failed in that regard. Respondent said his remarks about “fun and games” were part of an effort to give guidance to his law clerk about the complexity of domestic violence cases. But the exchange that Respondent initiated was not an instructive lesson of any sort.

The court sustained other charges of misconduct including

During a nine-minute ex parte phone conversation in front of a crowded courtroom, Respondent threatened the defendant mother in a paternity case with financial penalties and a loss of credibility with the court when she said she was scared to disclose her address. He also said, “he’s going to find you, ma’am. We’re all going to find you.” As the panel correctly observed, Respondent’s disturbing comments and questions were insensitive, threatening, and discourteous, and they reflected poorly on his temperament.

Notably, the Advisory Committee on Judicial Conduct had recommended a three-month suspension without pay with a minority favoring a six-month unpaid suspension.

The court took a harsher view

Viewed together, Respondent’s multiple acts of misconduct have lasting consequences. His pattern of misconduct and unethical behavior not only undermined the integrity of different court proceedings but also impaired his integrity and the Judiciary’s. His overall behavior reflects a lack of probity and fitness to serve as a judge. And his conduct breached the public’s trust. The vast majority of the more than 400 judges who serve on the Superior Court abide by the highest of ethical standards. In carrying out their responsibilities, they must uphold the law. Occasionally, judges are required to make difficult decisions that may be unpopular. They have no reason to fear that discipline will be imposed in such instances. Judicial independence, which is central to a constitutional democracy, rests on those core values. Judges may also make mistakes while reasonably carrying out their duties in good faith. That is not a basis for discipline either. Potential legal errors are properly challenged and reviewed on appeal instead. The series of ethical failures that Respondent committed are not errors of law, innocent missteps, or isolated words taken out of context. Viewed as a whole, they are flagrant and serious acts of misconduct. Respondent’s explanations under oath about what occurred also reveal a lack of candor on multiple occasions, which factors into the Court’s judgment in this matter.

Chief Justice Rabner authored the opinion. (Mike Frisch)

May 26, 2020 in Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, May 19, 2020

Virtually Yours

The ethics of virtual judicial campaigning are addressed by the Florida Judicial Ethics Advisory Committee

Opinion Number: 2020-09 (Election)
Date of Issue: March 22, 2020

ISSUES

1. May a judicial candidate appear on a computer or TV screen during a video meet and greet or video fundraiser while a donation button appears on the screen?

ANSWER: No; however, a judicial candidate may participate in a virtual campaign event as provided herein.

2. May a judicial candidate appear on a computer monitor for a virtual fundraiser and can a donation button appear if the candidate leaves the screen temporarily, and then the button disappears when the judicial candidate reappears on the screen?

ANSWER: No; however, a judicial candidate may participate in a virtual fundraiser as provided herein.

3. May a committee of responsible persons solicit donations for a judicial candidate during a telephonic campaign event if they are in another room other than the judicial candidate and the judicial candidate temporarily leaves the event during the request?

ANSWER: No; however, a judicial candidate may participate in a telephonic campaign event as provided herein.

4. May a judicial candidate work with a committee of responsible persons to do introductions telephonically and once the judicial candidate leaves the conversation may members of the committee solicit support and/or donations?

ANSWER: No.

FACTS

A judicial candidate notes that due to the social distancing, self-quarantine requirements, and other requirements in view of the COVID-19 pandemic, it has become necessary to consider new methods of fundraising for judicial campaigns. To that end, guidance is sought regarding the inquiries noted above.

Guidance

in response to Issue 1, a judicial candidate may not appear on a computer or TV screen during a video meet and greet or video fundraiser while a donation button appears on the screen. To opine otherwise would be equivalent to permitting a member of the committee of responsible persons to hold up a donate sign, while the judicial candidate was addressing potential supporters at an in-person campaign event or activity.

In response to Issue 2, a candidate may appear during the virtual fundraiser sponsored by the committee of responsible persons but must leave the virtual meeting before the committee asks for contributions via the donation button. However, the candidate may not come back to the virtual meeting after the ask. Consistent with JEAC Op. 12-14, the candidate should leave the virtual meeting when the solicitation occurs, so as to avoid the impression which a reasonable person may draw that the solicitation was being made by the candidate. The candidates’ departure should be announced when the candidate departs so that it is clear to all concerned that he/she has departed. Such announcement would more clearly eliminate concerns over the appearance of improper soliciting. Simply leaving a virtual meeting is not always that easily noticed by those who continue to participate.

With respect to Issue 3, a candidate may appear during a telephonic campaign event sponsored by the committee of responsible persons but must leave the event before the committee asks for contributions. However, the candidate may not come back to the telephonic campaign event after the ask. Similarly, when the candidate leaves the telephonic meeting, it should be announced so that it is clear to all concerned that he/she has departed.

This Committee has not previously addressed the extent to which a judicial candidate can be personally involved in directing or overseeing the activities of the members of the committee of responsible persons in the solicitation of support3 or donations. In JEAC Op.14-04, this Committee opined:

There is no language in Canon 7 that would prohibit a candidate from being campaign treasurer, directing or managing the campaign (including its website), making campaign expenditures for campaign expenses, or or solicit attorneys for publicly stated support.

With respect to Issue 4, the inquiry posits that candidate might call a prospective contributor, engage in some preliminary conversation, and then turn over the phone to a member of the committee of responsible persons who would make the actual solicitation. The Committee agrees with and adopts the reasoning of the Wisconsin Judicial Conduct Advisory Committee when opining on a similar inquiry:

The Committee believes that such a solicitation method violates the Code of Judicial Conduct because of the candidate's transparent attempt to avoid a “personal” solicitation. It remains solicitation by the candidate but done with a wink and a nod. The presence of the candidate in the conversation continues. It is as if the candidate is looking over the shoulder of the solicitor.” Wis. Jud. Cond. Adv. Comm, Op. 97-7 (1997)

It should be noted that nothing in Canon 7 prohibits a candidate from advising or giving direction to a member of the committee of responsible persons from whom to solicit contributions, without otherwise being present during the solicitation.

(Mike Frisch)

May 19, 2020 in Judicial Ethics and the Courts | Permalink | Comments (0)

A Presumptively Close Relationship

An opinion of the Florida Judicial Ethics Advisory Committee

Opinion Number: 2020-08
Date of Issue: March 26, 2020

ISSUES

1. Whether disqualification is required when the judge’s brother-in-law is a partner in a large law firm whose members may appear before the judge, in view of the decision in Sands Pointe Condominium Association, Inc. v. Aelion?

ANSWER: Yes.

2. If disqualification is required, is remittal of disqualification pursuant to Canon 3F permissible?

ANSWER: Yes, so long as the procedures set forth in Canon 3F are followed.

3. If disqualification is not required, is disclosure required?

ANSWER: This question is rendered moot by the answer to question 1.

Analysis

The committee finds that the inquiry before it is controlled by Canon 3E and that Fla. JEAC Op. 17-20 addresses the exact question posed. In that opinion, a judge had inquired whether a judge must be disqualified if an attorney from a law firm in which the judge’s brother-in-law is a partner appears as counsel in a case before the judge. The answer was an unequivocal yes. That same opinion, to which the inquiring judge is referred, cites numerous prior decisions of this committee involving inquiries concerning the employment of a judge’s relative by a law firm. While the need for disqualification becomes less clear as the relative’s kinship to the judge becomes more distant or the relative’s position in the firm is less directly related to the practice of law, one party having a lawyer from a firm in which someone as close as the judge’s brother-in-law is a partner could indeed cause other parties to reasonably question the judge’s impartiality. As stated in Fla. JEAC Op. 17-20, “We believe that a partner in a law firm has more than a de minimus interest in any case in which an attorney from that firm appears, whether it be a matter of reputation, client satisfaction, or economics.” The committee finds nothing in the Sands Pointe case that would cause it to recede from its holding in Fla. JEAC Op. 17-20. It is the opinion of the committee that the inquiring judge should disqualify himself or herself from the case.

(Mike Frisch)

May 19, 2020 in Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, May 6, 2020

Justice Resigns

The New York Judicial Conduct Commission accepted the resignation of a Supreme Court Justice

The New York Post reported

A Long Island judge who pleaded guilty in a drunk driving incident — and who was accused of using his position to try to avoid consequences — has resigned, officials announced Monday.

William Rebolini, who served as a Suffolk County judge for 27 years, in January pleaded guilty to one count of driving while ability impaired by alcohol for the Sept. 28, 2018, incident. He was sentenced to community service and a $500 fine.

The New York State Commission on Judicial Conduct brought charges against Rebolini for operating his motor vehicle while under the influence of alcohol and for allegedly using his judgeship to avoid consequences.

Rebolini, who served as a Supreme Court justice since 2004 and a district judge for 10 years before that, as part of an agreement with the commission will resign on May 28 and will not seek to sit on the bench again. In exchange, the commission has dropped the case against him.

“Judges are obliged to respect and comply with the law,” Commission Administrator Robert Tembeckjian said in a statement. “Driving under the influence of alcohol is a serious violation of law that threatens the safety and lives of pedestrians, passengers and other motorists, as well as the offending driver.

“It is made worse when a judge asserts the prestige of judicial office to evade the consequences of having been caught.”

Rebolini’s lawyer David Besso told The Post, “The judge wanted to leave the bench and didn’t want to go through with the formal proceedings and decided to resign.”

“Because this complaint was pending he had to resolve that before he left the bench. There is no admission on his part to the allegation in the complaint,” Besso added while acknowledging that his client pleaded guilty in the criminal case.

In his resignation letter from March 12, Rebolini did not mention his arrest or conviction but said he was retiring and looking forward “to a new chapter in my life with new opportunities and new beginnings.”

“In resigning I hope to be judged by my record of 32 years of public service and hope that with the help of so many people, I have been able to make our community a better place,” Rebolini wrote in the letter.

(Mike Frisch)

May 6, 2020 in Judicial Ethics and the Courts | Permalink | Comments (0)

Monday, May 4, 2020

Judge Reprimanded

The Indiana Lawyer reports on a judicial sanction

The judge of the Adams County Drug Court has received a public reprimand from the Indiana Supreme Court after being found in violation of four judicial ethics rules related to his dispute with other county officials on behalf of his drug court coordinator.

Adams Superior Judge Patrick R. Miller received the reprimand Thursday after the Indiana Commission on Judicial Qualifications instituted formal proceedings against him in March.

The discipline traces back to 2015, when drug court coordinator Kelly Sickafoose – identified only as “Coordinator” in the Supreme Court’s disciplinary order but identified by name in other public court documents – was hired as a contractor who reported directly to Miller.

The dispute arose the following year when Adams County Auditor Mary Beery, at the request of the county council and board of commissioners, declined to pay Sickafoose county benefits only available to full-time employees, not contractors. As the county continued to withhold public benefits through March 2017, Sickafoose’s attorney, J. Michael Loomis, was negotiating with the county attorney to reach a settlement on a tort claim Sickafoose had filed against Beery.

The following June, Miller issued an order requiring Beery to provide proof of payment to Sickafoose within 48 hours on threat of contempt. The case was then stayed on an emergency writ of mandamus and prohibition sought by Beery, but when the stay was lifted a few days later, a special county attorney told Miller the disputed claims had been paid.

The county attorney also requested a special judge, and now-retired Judge Thomas Hakes of Huntington County took over the case. Miller sent a letter to Hakes – on Adams County letterhead, the Supreme Court noted – asking that Beery be held in contempt.

Meanwhile, Loomis continued communicating with the special Adams County attorney, “giving the impression that he had strategized with Judge Miller on Coordinator’s claims. Judge Miller was aware of these emails but took no steps to correct the impression that Loomis was speaking on his behalf.”

Then in October 2017, Miller told the county attorney that he had drafted a contempt complaint against the auditor, but he suggested he would not file it if he was offered a settlement. County officials rejected Miller’s offer, and another special judge – Kenton Kiracofe of Wells County – entered judgment in favor of Beery.

In the judgment, Sickafoose was ordered to pay Beery $16,463.50 in attorney fees. Sicakfoose appealed, but a divided Indiana Court of Appeals affirmed.

In the Thursday order approving the statement of circumstances and conditional agreement of discipline, the Supreme Court agreed with the parties that Miller violated four provisions of the Indiana Code of Judicial Conduct, including:

    • Rule 1.1, requiring a judge to comply with the law, including the Code of Judicial Conduct;
    • Rule 1.2, requiring a judge to “act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary,” and to “avoid impropriety and the appearance of impropriety”;
    • Rule 1.3, providing that judges “shall not abuse the prestige of judicial office to advance the personal or economic interests of the judge or others, or allow others to do so”; and
    • Rule 3.10, prohibiting a judge from practicing law.

Miller’s act of committing misconduct in his official capacity was cited as an aggravating factor against him, but his cooperation and remorse were counted as mitigators. The Supreme Court also pointed to the public benefit of the Adams County Drug Court.

“Here, though Judge Miller disqualified himself from the dispute between Coordinator and the Auditor, he continued to negotiate on Coordinator’s behalf – both in his capacity as judge and behind the scenes with Coordinator’s attorney,” the Supreme Court wrote. “These discussions concluded with an ultimatum in which Judge Miller threatened the Auditor with contempt unless Coordinator was offered a substantial settlement from public funds. Such blatant abuses of judicial power ‘diminish[] public confidence in the judiciary’ and ‘erode the public’s perception of the courts as dispensers of impartial justice.’ In Re Van Rider, 715 N.E.2d 402, 404 (Ind. 1999).”

Miller was also given credit for his negotiations with the JQC.

The public reprimand ends the disciplinary proceeding against the judge. All justices concurred in In the Matter of the Honorable Patrick R. Miller, Judge of the Adams Superior Court, 20S-JD-108.

According to the Indiana Roll of Attorneys, Miller was admitted to the practice of law in Indiana in 1991 and has no prior disciplinary history.

Indiana Lawyer has reached out to Miller’s counsel for comment on the reprimand.

(Mike Frisch)

May 4, 2020 in Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, April 28, 2020

Outside The Record

An agreed censure of a county court judge is described in a news release of the New York Commission on Judicial Conduct

The New York State Commission on Judicial Conduct has determined that William A. Carter, a Judge of the Albany County Court, should be censured for engaging in an ex parte communication and failing to report cases pending longer than 60 days on his required quarterly reports of pending cases.

Judge Carter agreed to the censure.

In January 2018, Judge Carter presided over a murder trial in which the defense counsel moved to preclude certain evidence pertaining to the defendant’s phone conversations from jail. Without telling the District Attorney or defense counsel, Judge Carter called and spoke to a deputy sheriff at the county jail about how inmates are notified that their phone calls are being monitored. He then relied on that conversation in deciding the defense motion, again without informing either side of his ex parte conversation with the deputy sheriff.

Also, from April 2017 to September 2019, Judge Carter failed to report on his quarterly reports that he had several cases pending decision longer than 60 days, as required. The judge amended his reports in September 2019 as a result of the Commission’s inquiry.

Priors

Judge Carter was publicly censured by the Commission in 2006 for, among other things, coming off the bench and physically confronting a defendant appearing in his courtroom. (http://cjc.ny.gov/Determinations/C/carter.htm.)

Judge Carter was also privately cautioned by the Commission twice: in 2004 for failing to disqualify himself in arraignments of unrepresented defendants, notwithstanding that the complaining witness and alleged victim was his co-judge, and again in 2012 for appearing as a guest of honor at a fundraising event for a civic organization.

From the earlier censure involving an incarcerated criminal defendant

Respondent allowed the defendant to argue his position, and after the defendant became agitated and said he no longer wanted to participate in the proceeding because he claimed it was illegal, respondent became angry and, without adjourning the proceeding, abruptly removed his glasses, got up from the bench, removed his judicial robe and dropped it to the floor and proceeded rapidly in the direction of the defendant, in a manner indicating his purpose was to confront the defendant. Respondent was upset at the time of the incident and does not recall what he was thinking at the time he proceeded toward the defendant, but agrees that his conduct indicated his intent to confront the defendant.

One witness present in the courtroom heard respondent say of or to the defendant, "You want a piece of  me?" Respondent does not recall making this statement, because he was upset at the time of the incident, but he does not deny making the statement.

The commission's determination may be found here. (Mike Frisch)

April 28, 2020 in Judicial Ethics and the Courts | Permalink | Comments (0)

Town Court Justice Censured

A press release from the New York Commission on Judicial Conduct

The New York State Commission on Judicial Conduct has determined that Michelle A. VanWoeart, a Justice of the Princetown Town Court, Schenectady County, should be censured for making inappropriate statements in campaign literature and social media posts.

Judge VanWoeart agreed to the censure.

While running for election in September 2018 against incumbent Norman Miller, Judge VanWoeart produced campaign ads and literature indicating that it was a function of the court to generate local revenue, and that revenue under Judge Miller was down compared to when she had previously served as judge.

Judge VanWoeart also endorsed profane and otherwise offensive comments that her supporters posted about Judge Miller to her campaign Facebook page.

The Commission stated that Judge VanWoeart’s “advertisement and campaign literature gave the impression that revenue generation for the Town of Princetown would be a factor in her judicial decisions and that part of her responsibility as a judge ‘was to raise revenue for the town…to compensate for the absence of a town tax.” The Commission also found that the judge failed to meet the ethical standards required of judges “when she responded favorably to crude social media comments about her judicial opponent.

Prior Discipline

Judge VanWoeart previously served as the Princetown Town Court Justice from 1997 to 2013.

In 2012 Judge VanWoeart was censured for failing to disqualify herself promptly after appearance tickets were issued to her and her sons for violating a local dog ordinance, improperly communicating with the court to which the matters were transferred and failing to keep proper records of the violations.

The decision is linked here. (Mike Frisch)

April 28, 2020 in Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, April 23, 2020

Gone Fishing (And Caught Over The Limit)

The West Virginia Supreme Court of Appeals sanctioned a county magistrate for his violation of fishing laws, attitude when cited for the offense and subsequent testimony in the judicial misconduct proceedings. 

This matter arises from a judicial disciplinary Statement of Charges issued against the respondent, David E. Ferguson, Magistrate of Wayne County (hereinafter “the respondent”). The issues in the case surround the respondent’s violation of a state fishing law and, far more importantly, the belligerent and coercive behavior that he exhibited when Department of Natural Resources (“DNR”) officers issued him a citation. After holding an evidentiary hearing, the West Virginia Judicial Hearing Board (hereinafter “the Board”) concluded that the respondent violated several provisions of the West Virginia Code of Judicial Conduct and recommended that he be suspended for thirty days without pay, be issued a reprimand, pay a total fine of $2,000, and pay the costs of this disciplinary proceeding. Although he denied several of the charges when appearing before the Board, the respondent now indicates his willingness to accept the Board’s findings and the recommended punishment. The Office of Judicial Disciplinary Counsel (“JDC”) objects to some of the Board’s findings and the recommended sanction.

After considering the record and the parties’ written and oral arguments, we adopt the Board’s conclusions of law regarding the respondent’s rule violations with one modification. Specifically, we conclude that the respondent committed an additional violation of Rule 1.1 of the Code of Judicial Conduct. Furthermore, because of the respondent’s flagrant attempt to intimidate law enforcement officers, we find that a harsher sanction than that recommended by the Board is warranted. Therefore, we suspend the respondent for ninety days without pay, reprimand him, order him to pay a total fine of $2,000, and order him to pay the costs of this disciplinary proceeding.

The story

On February 21, 2017, the respondent went fishing with his father at the East Lynn Lake spillway. Many people were fishing at the spillway because the DNR had stocked it with trout earlier that day. Also present were two undercover DNR officers, Corporal Larry Harvey and Officer Jacob Miller, who were watching for any violation of state fishing laws. At the time, the respondent did not know these DNR officers, and the officers did not know him.

Corporal Harvey testified that he was standing on the bank at a vantage point where he could observe the respondent, the respondent’s father, and a third man fishing for trout and conversing with one another. Pursuant to state regulation, the daily creel limit was six trout per person. See W.Va. C.S.R. § 58-60-5.2 (2017). Corporal Harvey explained that although the respondent had already caught six trout, the respondent then caught two additional fish and gave one to his father and one to the third man. Officer Miller testified that after being alerted to the situation by Corporal Harvey, he also witnessed the respondent catch extra fish. Corporal Harvey testified that as the men were packing up to leave, he saw that the respondent had six fish for himself that he carried on a stick, the respondent’s father had six fish on a stringer, and the third man had six fish on a stringer. The officers determined that the respondent’s actions were contrary to state regulation, so Corporal Harvey instructed Officer Miller to intercede and write a citation.

While Corporal Harvey remained on the bank of the spillway, Officer Miller followed the respondent up a hill to a parking lot. When they reached the respondent’s vehicle, Officer Miller identified himself as a DNR officer and displayed his DNR badge and identification card, saying this is “just to show you, I’m not lying about who I am.” The officer requested the respondent’s photo identification, fishing license, and trout stamp. Officer Miller testified that the respondent dropped the tailgate of his truck, threw a card down on the tailgate in an “arrogant manner,” and said “well, I’m not lying about who I am, either.” The officer testified that the card the respondent threw down was a West Virginia Supreme Court photo identification card. According to Officer Miller, the impression that the respondent gave during this exchange was that he “was telling me he was somebody, some type of . . . whether it be attorney, judge, magistrate, [I] didn’t know at the time. That he’s somebody above the law. That it wouldn’t apply to him. That I – I couldn’t enforce the law.” Upon the officer’s second request, the respondent produced his driver’s license, fishing license, and trout stamp.

When the father and other person got involved, the officer testified that "things [were] starting to get a little bit of of hand."

The corporal explained that the men finally calmed down and he was able to issue each of them a citation for violating the state fishing law. Corporal Harvey testified that as he handed the citation to the respondent, the respondent named two of the corporal’s supervisors at the DNR and indicated that he would be contacting them.

Corporal Harvey testified that while it usually takes him just five minutes to write and issue a citation, this encounter with the respondent and his father lasted between thirty and forty-five minutes because of the men’s behavior. He summed up the encounter by noting that “[i]n my 19 years of experience, I have wrote [sic] many fish citations, exceeding the limit citations. I’ve never had anything close to this happen, not – I mean, this was terrible over a fishing violation.” During the exchange, the respondent’s father mentioned that he was a former magistrate, but the officers did not learn until later that the respondent was a sitting magistrate.

The citation issued to respondent included two misdemeanor charges: exceeding the creel limit and illegal possession of wildlife. Another Wayne County Magistrate, Billy Runyon, testified that the respondent pled no contest to exceeding the creel limit and paid a small fine and court costs. Upon the motion of the county prosecuting attorney, the other charge was dismissed.

Respondent disputed the fishing violation and that he had acted belligerently

The respondent also disputed the allegations that he acted in a belligerent manner while receiving the citation. With regard to Corporal Harvey, the respondent testified that “I’m not going to say at the very end, that I didn’t – that I didn’t raise my voice a little bit, but I was never out of hand with Mr. Harvey.” According to the respondent, he had just two fingers in his pockets when the corporal said, “[g]et your hands out of your pockets. I don’t want f***ing shot today.” The respondent testified that this statement “frustrated” him because he would never harm a law enforcement officer, but he nonetheless apologized to the corporal. After further questioning during the Board’s evidentiary hearing, the respondent admitted that he “might’ve spoken angrily after” the statement about getting “f***ing shot,” but he denied ever waving his arms or acting belligerently. The respondent explained that his father was “pretty irate,” and “for the most part,” the respondent was trying to calm his father down. The respondent’s father testified and admitted that he swore at Corporal Harvey, and that he even demanded to be arrested, but that the respondent did not behave in this manner. Both the respondent and his father indicated that it was Corporal Harvey who was disrespectful.

Finally, the respondent admitted that he used the names of two DNR supervisors while receiving the citation, and he acknowledged that it was wrong to have done so. He emphasized that he did not follow through with contacting the supervisors, and instead, he pled no contest and paid the ticket that same day.

The court affirmed some of the board's conclusions but

The Board found that the respondent violated Rule 1.1 by breaking the fishing law, but the Statement of Charges asserted that he also violated Rule 1.1 by lying during his sworn statement to the JDC. As set forth above, the Board concluded that the respondent violated Rule 2.16(A) by falsely denying in his sworn statement that he had behaved in a disrespectful and coercive manner toward the DNR officers. The JDC argues that because the Board found that the respondent violated Rule 2.16(A), logic dictates that he also violated the provision of Rule 1.1 that prohibits a judicial officer from violating the Code of Judicial Conduct. We agree with the JDC on this issue.

Sanction

This case is about much more than catching extra fish. Certainly, we want judicial officers to obey all laws, including state fishing regulations. However, if the respondent had behaved in a professional manner when receiving the fishing citation, this matter never would have resulted in a formal disciplinary proceeding. Instead, the respondent acted in a completely inappropriate, belligerent, and coercive manner toward the DNR officers while they were engaged in law enforcement activities. He threw down his Supreme Court photo identification card in an obvious attempt to obtain special treatment based upon his status as a judicial officer. He loudly asserted that the charges “ain’t going nowhere.” He became enraged when Corporal Harvey directed him to remove his hands from his pockets. He angrily paced, waved his arms, screamed, and argued with Corporal Harvey about the citation. He suggested that he would contact the officers’ supervisors. All of this was in an effort to intimidate these officers into not doing their jobs. Finally, he lied to the JDC during his sworn statement when he denied acting in this disrespectful and coercive manner. Such behavior by a judicial official is wholly unacceptable, especially when it occurs in the context of a law enforcement matter. We conclude that the respondent’s actions were directly related to the administration of justice and demonstrated a selfish and callous disregard for our system of justice. See id. The respondent’s behavior when receiving the citation and lying to the JDC cast a pallor on the “honor, integrity, dignity, and efficiency of the judiciary and the justice system[.]” See id. Magistrates “may be ‘appropriately disciplined for using abusive, insulting, intemperate, obscene, profane, threatening, vulgar, or other offensive language.’

A mitigating factor was that he had only been a magistrate for a few months at the time. 

The JDC urges us to impose a fifteen-month suspension without pay, a censure instead of a reprimand,  plus the fine and costs recommended by the Board. However, this recommendation is based upon the JDC’s argument that the respondent repeatedly lied about multiple issues in this case. That argument is not entirely supported by the Board’s findings of fact or our independent review of the record. As set forth above, we concur with the Board’s finding that the respondent lied in his sworn statement when denying that he behaved in a disrespectful and coercive manner, but the remaining claims of providing false information were not supported by clear and convincing evidence. While we disapprove of the respondent’s actions, the sanction recommended by the JDC is too severe.

The sanction was a reprimand, a 90-day suspension without pay and a $2,000 fine. (Mike Frisch)

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

Ex Parte Comments Draw Conditionally-Stayed Suspension

A magistrate's in court ex parte comments drew a conditionally-stayed six-month suspension from the Ohio Supreme Court

On August 2, 2017, Walter Gerino filed a petition for a civil stalking protection order against his neighbor, Paul Fish. The following day, Fish filed a counterpetition against Gerino. On August 16, 2017, Porzio, while serving as a magistrate, held a full hearing on both petitions. Gerino and Fish appeared pro se and both testified on their own behalf. After the close of evidence, Porzio requested that the parties exit the courthouse separately and that Fish leave first.

After Fish walked out of the courtroom, Porzio engaged in a 23-minute conversation with Gerino and his witnesses. Porzio repeatedly criticized Fish and commented on his credibility. She stated that Mr. Fish was “such a liar,” “made himself look like a fool,” was “clueless,” and acted “like he’s 10 years old.” She also discussed the evidence, explained the legal standard for obtaining a civil stalking protection order, and indicated how she intended to decide the matter—that is, early in her conversation with Gerino, she stated that neither party had proved his case.

In addition to discussing substantive matters, Porzio made offhand and unnecessary comments about the parties’ religions and ethnic backgrounds. For example, she stated, “[Fish] said he was a minister. What’s the story with that? * * * A Christian minister even though he’s Jewish” and “Do Jewish people have halos? I think they have angels though, right? * * * The Catholics got lots of angels or uh * * * Halos.” Porzio also used inappropriate slang and profanity, such as stating that some of Fish’s testimony had been “such bull shit.” She said to Gerino, “[A]t the end of this, who looked like * * * an asshole and who looked like a good guy?” At one point, Porzio left the courtroom to confront Fish, who had apparently remained seated in the hallway outside the courtroom. At that point, one of Gerino’s witnesses stated, “She don’t like him, does she?”

A few months later, Porzio issued a magistrate’s decision granting Gerino a five-year civil protection order and denying Fish’s counterpetition— despite the fact that she had previously told Gerino that neither party had proved his case. At her disciplinary hearing, Porzio admitted that someone in Fish’s position might assume that her ex parte communication with the opposing party had influenced her decision.

Sanction factors

The board did not find the existence of any of the aggravating factors listed in Gov.Bar R. V(13)(B). The board stressed, however, that Porzio’s casual comments on the parties’ religions and her other offhand comments demonstrate that she needs to better understand how her words might suggest actual or implicit
bias—both in her position as a magistrate and as a practicing attorney.

In mitigation, the board found that Porzio has a clean disciplinary record in over 40 years of practice, she lacked a dishonest or selfish motive, she had a cooperative attitude toward the disciplinary proceedings, and other penalties had been imposed for her misconduct—namely, she was terminated from her position as a magistrate. See Gov.Bar R. V(13)(C)(1), (2), (4), and (6). The board also cited Porzio’s significant character evidence, including testimony from a former common pleas court judge and various character letters demonstrating her competence, professionalism, and integrity as a magistrate. See Gov.Bar R. V(13)(C)(5). Indeed, Porzio had served for about 30 years as a magistrate in three different courts, held officer positions in the Ohio Association of Magistrates, and taught numerous continuing-legal-education (“CLE”) seminars for other magistrates. As the board noted, Porzio’s mitigating evidence suggests that her conduct in this case was an aberration from her normal behavior. Finally, the board noted that Porzio expressed remorse at her disciplinary hearing by testifying that she was “horrified” at how she had acted and acknowledging that her conduct had been “wrong all the way around.” The board also noted, however, that not all the hearing-panel members were convinced of the sincerity of Porzio’s testimony.

Bottom line

We agree with the board that a sanction greater than a public reprimand is warranted in this case. Porzio not only announced her intended decision to one party during a lengthy ex parte communication, she ridiculed the absent party, made inappropriate comments about the parties’ religions, used profanity, and later failed to recuse herself from the case, despite having had the time to review the audio recording of her ex parte communication and reflect on how her actions might have reasonably created at least the appearance of partiality. Rather than promoting the evenhanded administration of justice, these actions erode the public’s confidence in the integrity and impartiality of the judiciary...

[She] is hereby suspended from the practice of law in Ohio for six months, with the entire suspension stayed on the conditions that (1) within six months of our disciplinary order, she complete four hours of CLE in the area of judicial ethics, with two of those hours relating to actual or implicit bias, in addition to the other requirements of Gov.Bar R. X and (2) she commit no further misconduct. If Porzio fails to comply with either condition, the stay will be lifted and she will serve the entire six-month suspension.

(Mike Frisch)

April 23, 2020 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, April 15, 2020

The Unclose Father-In-Law

The Florida Judicial Ethics Advisory Committee opines

Opinion Number: 2020-07
Date of Issue: March 25, 2020

ISSUES

Whether a candidate may permit the candidate’s father-in-law to write letters and emails to professional acquaintances in support of the candidate’s candidacy (while refraining from asking for contributions).

ANSWER: Yes, subject to appropriate precautions.

FACTS

The inquiring judicial candidate would like to permit the candidate’s father-in-law to write letters soliciting support of the candidate’s candidacy. The letter would include a reference to the candidate’s web page. The candidate informs us that the candidate is not “close by any means” to the father-in-law, nor are they on especially friendly terms (apparently, the father-in-law is nevertheless willing to offer this support). It does not appear that the candidate would request the father-in-law to serve on the candidate’s campaign committee. The candidate asks whether this would be permissible under Canon 7.

DISCUSSION

Two subsections of Canon 7 form the framework for our consideration of this issue. Florida Code of Judicial Conduct, Canon 7C(1) provides that “[a] candidate . . . for a judicial office . . . shall not personally solicit campaign funds . . ., but may establish committees of responsible persons to secure and manage the expenditure of funds for the candidate’s campaign and to obtain public statements of support for his or her candidacy. Canon 7A(3)(b) extends that prohibition insofar as it requires a judicial candidate to “encourage members of the candidate’s family to adhere to the same standards of political conduct in support of the candidate as apply to the candidate[.]” The Code of Judicial Conduct defines a member of a candidate’s family to include “a spouse, child, grandchild, parent, grandparent, or other relative or person with whom the judge maintains a close familial relationship.” (emphasis supplied).

Unfortunately, this definition necessarily imposes a potentially awkward (and inherently ambiguous) query that candidates must be prepared to answer: which family members are sufficiently “close” such that the candidate should “encourage” their adherence to Canon 7’s various restrictions?1 In Fla. JEAC Op. 10-16, we gave this precautionary advice:

In the current inquiry, the relatives (brothers, mother-in-law, and cousins) are not within the definition a judge’s family provided in the Code. However, if the judge “maintains a close familial relationship” with any of the persons identified, then that person would also fall within the admonition of Canon 7A(3)(b).

Therefore, if the judge maintains a close familial relationship with the family member identified, the judge must encourage that person to refrain from soliciting contributions and endorsements. If the judge does not maintain a close familial relationship with the family member identified, then the judge is not required to encourage that person to refrain from soliciting contributions and endorsements.

The peril of the situation, as is evident from the distinction drawn in the previous paragraphs, is that whether or not a relative (who is not within the definition of “family”) maintains a close familial relationship with a judge is question of fact. Therefore, if it were determined that the relative did have a close familial relationship with the person soliciting support, and if it were determined that the judge had failed to encourage that person to abstain from solicitation of contributions or support, then the judge would have committed a violation of the Code. See Inquiry Concerning a Judge, re Angel, 867 So. 2d 379 (Fla. 2004) (The Supreme Court of Florida publicly reprimanded a judicial candidate for, among other improprieties, permitting the judge’s spouse and family members to attend and campaign at partisan political gatherings.)

The inquiring candidate states that the father-in-law is not close. Insofar as the candidate is satisfied that “the peril of the situation” - that is, that a finder of fact might deem otherwise - is sufficiently minimal, then the candidate need not “encourage” the father-in-law to refrain from sending a letter soliciting support.

The inquiring candidate here also tempers any potential violation of Canon 7 in that it does not appear that the letter the candidate’s father-in-law contemplates sending would solicit financial contributions or endorsements, but would simply ask for “support” in a more generic sense. Cf. Fla. JEAC Op. 16-13 (“Nothing in Canon 7 prohibits a judicial candidate from asking the electorate to vote for him or her - whether on Facebook, in person, or through the mass media.”). However, we would caution the inquiring candidate that if the father-in-law were deemed a “member of the candidate’s family,” and if the letter he sends refers the reader to the candidate’s campaign website, and if the website includes a feature that facilitates financial contributions or endorsements, then this solicitation (although admittedly somewhat attenuated) could potentially run afoul of Canon 7A(3)(b). See Fla. JEAC Op. 19-22 (“Likewise, a candidate may not ‘share’ the candidate’s campaign website, as doing so would be re-directing the recipient of the ‘share’ to the actual campaign’s website where contributions and support are being solicited.”).

(Mike Frisch)

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

Tuesday, April 14, 2020

Job Share Ethics

A recent opinion from the South Carolina Advisory Committee on Standards of Judicial Conduct

FACTS
A candidate for a part-time municipal judge position inquires as to whether the judge may continue employment as general counsel for a university (that is not in the same municipality as the judicial position).

CONCLUSION
A part-time municipal judge may continue employment as general counsel for a university.

OPINION
Generally, judges are prohibited from practicing law as set forth in Canon 4G, Rule 501, SCACR. However, according to Section C of the Application of the Code of Judicial Conduct, a “continuing part-time judge is not required to comply” with the prohibition in Canon 4G. Application, Section C(1)(b). Thus, a part-time judge may continue practicing law as general counsel for a university. However, in his or her capacity as general counsel, the judge “shall not practice law in the court on which the judge serves or in any court subject to the appellate jurisdiction of the court on which the judge serves, and shall not act as a lawyer in a proceeding in which the judge has served as a judge or in any other proceeding related thereto.” Application, Section C(2).

(Mike Frisch)

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