Friday, January 17, 2020

A Rich History Of Comparable Prior Cases Leads To Disbarment Of Former New Jersey Judge

The New Jersey Supreme Court has disbarred an attorney for misconduct as a judge.

The order also permanently disqualifies from holding judicial office.

The Disciplinary Review Board described the criminal matter that eventually led to the attorney's completed of a pretrial intervention program and his future disqualification from judicial office

During his guilty plea allocution, respondent admitted that, from January 2010 through October 2015, while serving in public office as a municipal court judge in nine jurisdictions, he had systematically falsified official court records in motor vehicle cases. Specifically, respondent admitted that he routinely suspended mandatory motor vehicle fines in cases and, instead, substituted phony, baseless contempt of court charges in their place, knowing that his criminal scheme would steer one hundred percent of the contempt proceeds to the towns over which he presided. In contrast, mandatory motor vehicle fines were required to be divided between the respective towns and Monmouth County. Respondent further admitted that, if challenged by a defendant, he often would revert contempt charges to mandatory fines, but, on one occasion, threatened jail time for a defendant who had raised such a challenge. Moreover, respondent admitted that he would improperly apply defendants’ bail money toward the phony contempt charges, without notice or due process for those defendants.

Respondent further admitted that the purpose of his criminal scheme was to use his authority, in his public office, to direct maximum revenue to the towns where he presided as a municipal court judge, and that, to conceal his wrongdoing, he typically falsified the contempt charges outside of the presence of the defendants and their counsel.

Respondent admitted that his scheme was successful and, thus, deprived Monmouth County of its fair share of motor vehicle fine revenue. Finally, respondent admitted that he continued his scheme, even after a March 7, 2014 meeting with his superiors to discuss his contempt of court practices. Although he began assessing smaller phony contempt fines, he continued to steer funds to his preferred jurisdictions, until his suspension from the bench, on October 23, 2015.

What struck me most about the 30-page DRB recommendation was the plethora of prior cases involving ticket-fixing New Jersey judges.

The discipline imposed in cases involving similar misconduct in connection with municipal court proceedings has ranged from a reprimand to disbarment, depending on the facts of the offense, the presence of other unethical conduct, and the analysis of aggravating and mitigating factors.

The attorney sought a lesser sanction but

respondent argues that, given the widespread abuse of contempt of court fines by municipal court judges in New Jersey, it would not be fair to "single [him] out" and impose disbarment for his conduct...

Despite respondent’s protestations of being singled out, the evidence clearly and convincingly illustrates that he engaged in an egregious, systematic scheme of criminal conduct, while serving in public office.

(Mike Frisch)

January 17, 2020 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Monday, January 13, 2020

A Parents Of Impropriety

The New York Commission on Judicial Conduct has censured a full-time judge

notwithstanding that, as a full-time City Court judge, he was prohibited from practicing law, respondent appeared and acted as his daughter's attorney in a Family Court matter on three occasions and lent the prestige of his judicial office to advance the private interests of another by invoking his judicial title in several instances during his court appearances on November 5, 2015 and March 2, 2016.

In one appearance

During his appearance in court on March 2, 2016, respondent invoked his judicial office in two instances, stating:

  1. "Now I'm her father as well as an attorney but I'm actually a judge. I can't practice law except in my own family cases."
  2. "Now as a parent I learned one thing, and as a judge, when you say stay away to a young person, they often don't stay away."

Respondent's daughter was granted an order of protection and the matter was adjourned to April 7, 2016.

Sanction

While we believe that respondent's misconduct comes close to warranting removal, in accepting the jointly recommended sanction of censure, we have taken into consideration that respondent has admitted that his conduct warrants public discipline. We trust that respondent has learned from this experience and in the future will act in strict accordance with his obligation to abide by all the Rules Governing Judicial Conduct.

Dissent on sanction from Member Raskin

I concur with the majority determination and respectfully dissent as to the sanction. The facts in this case are akin to the knowing and tactical misconduct in Matter of Ayres, 30 N.Y.3d 59 (2017). I find unavailing respondent's assertion that he was unaware his representation contravened established prohibitions. Respondent's conduct was neither inadvertent nor miscalculated. Rather, it was purposeful and strategic. I would recommend removal based upon the principles established in Ayres. 

(Mike Frisch)

January 13, 2020 in Judicial Ethics and the Courts | Permalink | Comments (0)

Friday, December 27, 2019

The Meaning Of Demeaning

A town court justice has been censured by the New York Commission on Judicial Conduct

Respondent, Michael A. Tawil, a Justice of the Ossining Town Court, Westchester County, was served with a Formal Written Complaint dated May 22, 2019, containing two charges. Charge I of the Formal Written Complaint alleged that in the summer of 2016, respondent entered a gift shop and publicly confronted store employees about a display of smoking and/or drug-related paraphernalia in the store's window display, used profanity and invoked his judicial office in an attempt to have the items removed from the window display. Charge II of the Formal Written Complaint alleged that on March 8 and March 9, 2017, while acting as a private defense attorney in Carolyn Thomas v. Quest Livery Services, LLC DIBIA Bee Bee Car Services, Pedro Roberto Batista, Nelson J. Urbina and Methuran Bahiro, respondent (A) made an insensitive remark about a codefendant's ethnicity during his summation and (B) asserted his judicial office to advance his private interests when confronted about the impropriety of his summation remark.

The remark referred to in charge II

On the other hand, you have Mr. Batista. He's on the phone talking to his female girlfriend or someone. He's selling cell phones to his passenger, he's listening to the radio, he said they're having a good time in the car. They're having a good time and he's paying attention to the passenger, to his girlfriend, probably to the radio. For all we know, he could be frying up some platanos in the front seat [emphasis added]. We don't know. But he's not paying attention to the road, what's going on around him, okay.

Then

The next day, on March 9, 2017, before the jury was charged, Judge Edwards conducted an off-the-record conference with respondent and his client's insurance adjuster in chambers. At the conference, Judge Edwards told respondent inter alia that his summation remark about "platanos" was "racist." Judge Edwards told respondent, "What's going to happen now is your client is going to pay $25,000 to settle this case right now or I am going to report you to the Appellate Division Second Department. That's your license counselor."

Respondent replied that he was "a current Part-Time Town Justice" and that he would never "intentionally make a racist comment." Respondent would testify that he was fearful of the threat and nervous when he said this.

The commission

In accepting the jointly recommended sanction of censure, we have taken into consideration that respondent was cooperative with the Commission. He admitted that his conduct was improper and warrants public discipline. We also note that respondent has expressed remorse for his conduct.

A dissent on characterization of the remark

I concur with the majority determination and sanction and respectfully dissent as to the characterization of respondent's "platanos" comment referenced in Charge II as "demeaning."

This case arose out of a contentious exchange between a trial judge and respondent attorney, who is also a town justice, during a personal injury trial before a jury in Kings County. In an effort to coerce a settlement, the trial judge threatened to report respondent to the Appellate Division stating, "that's your license counselor.'· based on her conclusion that respondent's comment during his summation was "racist." The Commission recently issued a determination finding that the trial judge should be admonished for her conduct. In the course of reviewing respondent's complaint against the trial judge, the Commission authorized an investigation of respondent's own conduct in the matter.

My learned colleagues concluded that respondent uttered a "demeaning" remark during his summation. I cannot apprehend the impropriety or insensitivity of respondent's words in the absence of context. While the statement respondent made may well be demeaning, it may also be benign. strategic, or otherwise inoffensive when viewed in the framework of the trial and the issues before the jury. Based upon the facts presented to the Commission and lacking perspective on the trial, I cannot conclude that respondent's comment was "demeaning."

(Mike Frisch)

December 27, 2019 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, December 26, 2019

Former Judge Suspended For Perjury Plea

The Michigan Attorney Discipline Board ordered the interim suspension of a recently-convicted former judge

On December 3, 2019, the court accepted respondent's plea of guilty to one count of perjury, in violation of MCl 750.423, a felony, in the matter titled People of the State of Michigan v Theresa Marie Brennan, Livingston County Circuit Court, Case No. 19-025735-FH. In accordance with MCR 9.120(B)(1), respondent's license to practice law in Michigan was automatically suspended on the date of her felony conviction.

Detroit News reported

A former Livingston County judge pleaded guilty Tuesday to lying under oath, six months after she was removed from the bench for multiple ethics violations.

Former 53rd District Court Judge Theresa Brennan pleaded guilty to perjury, a 15-year felony, Michigan Attorney General Dana Nessel announced.

Two other lesser charges against Brennan, misconduct in office and tampering with evidence, were dropped.

"Her guilty plea will require her to notify the Michigan Attorney Grievance Commission of her criminal conviction, which may lead to future licensing sanctions, including the possibility of disbarment, against the embattled former judge," a press release from the Attorney General's Office said.

The Michigan Supreme Court removed Brennan from office in June after charges of judicial misconduct were filed and heard by the Michigan Judicial Tenure Commission.

"This defendant violated the very tenets we as a society hold dear: truth, honor and justice," Nessel said in Tuesday's release. "She made a mockery of her oath of office and undermined the integrity of the bench.”

Dennis Kolenda, an attorney representing Brennan, did not immediately respond to a phone call seeking comment Tuesday.

Livingston County judges recused themselves from hearing the case, which was assigned to Judge Paul Cusick of Wayne County Circuit Court. Sentencing is scheduled for 2 p.m. Jan. 17.

In April, the Judicial Tenure Commission recommended that the state Supreme Court remove Brennan from the bench after the commission found she failed to disclose relationships with a state police detective and an attorney who had appeared before her; tampered with evidence in her divorce case; lied under oath; "was persistently impatient, undignified, and discourteous," and ordered employees to perform personal tasks during work hours.

The commission also recommended Brennan pay about $35,570 in costs and expenses for making misleading statements to the commission.

In a June ruling, the state's high court adopted the commission's recommendation to remove Brennan from the bench.

"The cumulative effect of respondent’s misconduct convinces this Court that respondent should not remain in judicial office," the ruling said. "Therefore, we remove respondent from office and conditionally suspend her without pay for a period of six years, with the suspension becoming effective only if respondent regains judicial office during that period."

(Mike Frisch)

December 26, 2019 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, December 17, 2019

Favoring Forrester

A New York Village and Town Court justice has resigned in the face of a formal complaint alleging improper intervention in the stop of his former brother-in-law.

Per the complaint

At all times pertinent to the matters herein, Kenneth Mignemi was the Police Chief, and Katelyn Sanders and David Beers were police officers, in the Village of Mt. Morris.

On or about August 19, 2016, at approximately 8:37 PM, Officer Sanders stopped a car driven by James Forrester. Ms. Davies, Mr. Davies and Ms. Lowell- Forrester were passengers in the car. Soon thereafter. Officer Beers arrived.

Upon Officer Sanders’ inquiry, Mr. Forrester acknowledged that he had consumed alcohol that evening.

Officer Sanders administered three field sobriety tests to Mr. Forrester: the gaze nystagmus” test, the “walk  and turn” test and the “one-leg stand test. Mr. Forrester failed all three tests.

Officer Sanders then administered a prescreen breath test, which indicated the presence of alcohol in excess of the legal limit, whereupon she placed Mr. Forrester under arrest.

A call was placed to respondent.

Respondent then called the cell phone of Chief Mignemi, informed him that one of his officers had stopped Mr. Forrester and had asked him to submit to a sobriety test. Respondent told Chief Mignemi that Mr. Forrester had consumed "only a couple of drinks" at a dinner event prior to the traffic stop.

 Respondent asked Chief Mignemi whether he could reach out to his officer to see if she could, in sum or substance, "give him [Mr. F arrester] a break."

Chief Mignemi understood Respondent's call to be a request for favorable intervention in Mr. Forrester's traffic stop.

Chief Mignemi thereafter called Officer Sanders and, when at first unable to reach her, then called Officer David Beers. Chief Mignemi then spoke on the phone with Officer Sanders, told her he had spoken with Respondent, told her to give Mr. Forrester "a break" and directed her to release him and have another individual drive his vehicle.

Respondent and Ms. Davies thereafter spoke, and Respondent learned that Ms. Davies did not need a ride and was being driven home by Ms. Lowell-Forrester.

(Mike Frisch)

December 17, 2019 in Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, December 11, 2019

Judged Fit

The Ohio Supreme Court has reinstated a suspended former judge. 

On application for reinstatement by respondent, James Michael Burge. Application granted. James Michael Burge, Attorney Registration No. 0004659, last known business address in Lorain, Ohio, reinstated to the practice of law

The story from the Cleveland Plain Dealer

The Ohio Supreme Court on Tuesday reinstated the law license of former Lorain County Judge James Burge who was suspended from practicing less six months ago after a criminal conviction and a history of judicial misconduct.

The Aug. 13 suspension stemmed from a series of issues raised by the Ohio Board of Professional Conduct that included Burge’s behavior on the bench and his criminal conviction for failing to disclose he owned a building that he rented to attorneys who appeared before him in court.

Most notably, Burge acquitted a man charged with rape in 2012 because he believed the man had not penetrated the 14-year-old victim deep enough. During a disciplinary hearing, Burge admitted that he disregarded the legal standards in the case when he tossed out the rape charge and found him guilty of gross sexual imposition, according to the board’s findings.

The appeals court later ruled that Burge erred and that he applied the wrong legal standard when he granted the acquittal.

The Supreme Court ordered the year-long suspension of his law license with the caveat that it would stay six months of the punishment if Burge did not engage in any misconduct.

Burge could not be reached for comment.

An investigation led by the Ohio Board of Professional Conduct uncovered a slew of red flags that included Burge’s failure to disclose that he owned a building that he rented out to attorneys who appeared in his court.

The former judge was convicted in April 2015 on misdemeanor charges for failing to disclose he and his wife’s partial ownership of an office building.

He was ordered to pay $3,000 in fines after his felonies were reduced to misdemeanors because the verdict forms “failed to specify the appropriate offense level for the tampering charges,” an earlier opinion says.

(Mike Frisch)

December 11, 2019 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, December 5, 2019

Former Magistrate Charged With Misconduct

A former Ohio magistrate has been charged with violations of the Code of Judicial Conduct for an incident with a person who was seeking a civil protection order but came too late to be heard that day. 

WCPO 9 Cincinnati had the details 

A Hamilton County Common Pleas Court magistrate says he was forced to resign this week after video cameras caught him chasing a woman down courthouse hallways and leading her by hand into his courtroom, then ordering her arrested, sparking a violent incident that spread from his courtroom to the jail.

Former Magistrate Michael Bachman told the WCPO I-Team that Court Administrator Patrick Dressing personally told him Monday to “resign or be terminated.”

"I think the video speaks for itself," Bachman told the I-Team in his defense. "I didn’t choke her or manhandle her. I merely put my hand up to guide her to the courtroom.”

I-Team: 'Was the mistake touching her?

Bachman: “Apparently it was.”

Bachman told WCPO he left the bench to confront Kassandra Jackson on Sept. 4 because she was yelling outside his courtroom and disrupting a hearing.

As the video begins, you can see Jackson trying to file for a protection order, but staffers told her she missed the deadline and would have to come back. Witnesses say Jackson got angry and argued with them, and Bachman claimed he couldn't hear an attorney question a witness.

Nine seconds after Jackson walked away, Bachman charged through the door to the hallway. Bachman jogged after her, pointing at her and ordering her to return to his courtroom. He caught up to her at the public elevators and they started walking back together. 

As Jackson started to go down a side hallway, Bachman put his hand on the back of her shoulder and guided her back on the correct path, then kept his hand there for 23 seconds until he pushed her into a seat in the jury box. Bachman and Jackson continued talking.

WATCH Bachman chase Jackson and lead her to his courtroom below:

 

Once in the courtroom, the incident almost immediately flared up when Bachman notified Jackson that she was being arrested for contempt of court.

Jackson resisted two deputies’ attempts to arrest her. The deputies, assisted by courtroom staff, struggled to subdue her. Once Jackson was handcuffed, she still resisted and those deputies and several others dragged her down hallways and elevators to the Justice Center.

They restrained her to chairs and later removed her in a restraint chair.

WATCH deputies arrest Jackson in Bachman's courtroom below:
 

Jackson was freed two days later by presiding Judge Kim Wilson Burke. Burke ordered the contempt charge and rest of Jackson's 10-day sentence dropped  “for good cause.”

In his contempt citation on Sept. 4, Bachman said the incident started when Jackson “was witnessed becoming belligerent and heard screaming loudly in the halls."

WATCH deputies drag Jackson to jail below:

 

 

 

The citation went on to say:

“Kassandra Jackson’s conduct interrupted the hearing and the court ordered her to return to the courtroom. Kassandra Jackson refused to return and had to be forcefully brought back to the courtroom. Upon learning she was being held in contempt of court and imposing a three-day sentence,  Kassandra Jackson resisted arrest and attempted to flee the custody of deputies. The court then added seven days to the sentence.”

Bachman ended by saying he imposed the sentence for “disrespectful and disruptive behavior.”

Two longtime Hamilton County judges told the I-Team they can't remember a case like this one - where a judge or magistrate charged out of a courtroom, and pursued someone down a hallway, pointing at them and talking to them, then literally put a hand on that person from the hallway to a chair in the courtroom.  

Cincinnati.com recited some prior issues

In more than 10 years as a magistrate, Bachman sent dozens to jail. Nearly 40 people in all were sentenced to approximately 435 days for contempt since 2007, the records show.

Most of the offenses involved only profanity.

In his first such order, in early 2007, Bachman put a man in jail for a month because he told the magistrate, "You're a d---head," according to the records.

Later that year, he sentenced a woman to three days after she "stuck out her tongue and pretended to 'moon' the court."

In 2009, he threw a man in jail for a month for saying, "I don't give a f---."

In 2010, Bachman ordered a woman spend 20 days in jail for "refusing to remain silent," arguing and not sitting in a specified place when ordered to, the records show.

A woman denied a temporary protection order screamed in the hallways, for which Bachman sentenced her to one day in jail. She then ignored Bachman's orders to not reach into her bag and to set her bag down, so he gave her two more days.

The records show some inconsistencies in Bachman's punishments.

In 2009, a man got seven days for saying, "This is bulls---." A different man uttered the same phrase about a month later but was sentenced to 30 days in jail.

A few weeks later, a woman uttered the same phrase, prompting Bachman to impose a $250 fine.

And a woman who said "bulls---" in 2012 got a $100 fine.

No other circumstances factored into these similar cases with disparate sentences, according to the records.

The charges here were filed by Ohio Disciplinary Counsel. (Mike Frisch)

December 5, 2019 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, December 3, 2019

No Removal

A district court  judge has been publicly reprimanded and admonished by the Oklahoma Supreme Court over a number of dissents

The Council on Judicial Complaints initiated this case by delivering a report to the Chief Justice concerning the Council's investigation of District Judge Kendra Coleman. The report contained an evidentiary record and Findings of Fact, Conclusions of Law and a Recommendation that the Supreme Court en banc file a petition with the Court on the Judiciary to remove Judge Coleman. Given the fact that two members of the Supreme Court sit on the Appellate Division of the Court on the Judiciary, the Chief Justice appointed Special Justices to serve in their place as well as a Special Justice to serve for a currently vacant office on the Supreme Court. Thereafter, the Supreme Court, thus constituted, reviewed the Council's report and voted 5-4 that the allegations and evidence of misconduct set forth in the report did not warrant the filing of a petition for removal.

The violations

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.

There were dissents (not reported in full here)

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.

Kuehn, S.J., with whom Kane, J., and Wiseman, S.J., join, dissenting:

While I agree with the Majority that the Supreme Court has the jurisdiction to refer this matter to the Court on the Judiciary or retain it, based on the referral by the Council on Judicial Complaints, I part from the decision to retain it. I respectfully dissent.

By retaining this case the Supreme Court is determining, without a full hearing on the merits, that Judge Coleman has violated the Code of Judicial Conduct and committed the offense of oppression in office, a constitutional violation. Given the number and nature of the allegations, I find this unfair to both Judge Coleman and the people of the State of Oklahoma. I believe the best course is to refer this case to the Court on the Judiciary to determine, after a full hearing, what violations occurred and what punishment, if any, should be imposed as a result. I agree with the Majority that not every referral warrants this procedure, and emphasize that my decision rests on the particular circumstances of this matter.

If this matter is referred to the Court on the Judiciary, that court may independently reach its own conclusions on the merits and has the authority to fashion appropriate remedies beyond removal or dismissal. No statute or rule requires the Court on the Judiciary to remove a respondent who has been recommended for removal by the Council. Title 20, Section 1651(2)(a) explicitly says that referral to the Court on the Judiciary is for the "purpose of removal, reprimand, or admonition." This plain language suggests the Court has the authority to impose a variety of punishments. And in fact, the Court has done so. In State ex rel. Simms v. McCallister, the Court on the Judiciary agreed the judge had committed oppression of office, rejected the recommended remedy of removal, and imposed a four-month suspension from office without pay; that punishment was upheld on appeal. 1986 OK JUD 1721 P.2d 427. In a later case, the Appeals Division found that, where the offense alleged was not serious enough to require removal or compulsory retirement, the Court on the Judiciary lacked "jurisdiction to reprimand, or discipline in any other way." Mattingly v. Court on Judiciary, Trial Div.2000 OK JUD 1¶ 19, 8 P.3d 943, 950. This language supports my conclusion that, in an appropriate case, the Court on the Judiciary has the authority to fashion appropriate remedies beyond removal or compulsory retirement.

I would afford Judge Coleman the opportunity for a trial by her peers, as contemplated by statute. I respectfully dissent.

(Mike Frisch)

December 3, 2019 in Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, November 19, 2019

Social Media Posts By Judge Draws Reprimand

TBA Today (the Tennessee Bar Association) reports

Shelby County Criminal Court Judge Jim Lammey has received a reprimand from the Tennessee Board of Judicial Conduct for comments posted on social media about the Holocaust, Muslims and immigrants. The Daily Memphian reports the reprimand was issued Friday and made public today. The judge’s comments came to light in an April 30 story in The Commercial Appeal. Complaints subsequently were filed with the board by the Memphis Bar Association and Latino Memphis. The board found that Lammey’s comments were “partisan in nature” and a “clear violation of the code of judicial conduct,” but did not find proof that Lammey displayed “any actual bias, prejudice, or impartiality” in his official capacity as a judge.

The reprimand is linked here. 

The judge agreed to keep his media platforms private in the future. (Mike Frisch)

November 19, 2019 in Judicial Ethics and the Courts | Permalink | Comments (0)

Massachusetts Reduces Sanction For Florida Judge Who Accepted Baseball Tickets From Counsel

The Massachusetts Supreme Judicial Court imposed reciprocal discipline on a former Florida judge but reduced the term of suspension from two years to 15 months.

The Rule thus does not require that I follow the Florida Supreme Court as I must set the appropriate sanction under our jurisdiction so that it does not markedly differ from punishments ordered in similar cases. See In re Burnbaum, 466 Mass. 1024, 1025 (2013). Although I do not consider the Florida Supreme Court's suspension wholly unreasonable, I find that the misconduct does not require the exact same punishment here.

The misconduct

While a judge, Mr. Lakin presided over a trial that lasted from June 22, 2015 until June 25, 2015. On June 26, 2015, plaintiffs counsel offered Mr. Lakin tickets to the Tampa Bay Rays' home game against the Boston Red Sox and Mr. Lakin accepted. On July 2, 2015, plaintiffs counsel filed a motion for a new trial. Mr. Lakin held a hearing on that motion on August 21, 2015. On August 25, 2015, he requested and received two more tickets to the Rays game from plaintiffs counsel. On August 26, 2015, he granted plaintiffs motion for a new trial. Mr. Lakin asked for tickets on two more occasions before disclosing the gifts to defense counsel on October 9, 2015, and recusing himself on October 15, 2015. After becoming aware of a pending formal violation against him, Mr. Lakin self-reported to the Florida Judicial Qualification Commission, which filed formal charges against him on February 1, 2016.

Despite this behavior, the [Florida]  Referee found that Mr. Lakin exhibited no bias in ordering a new trial; the respondent had planned to do so anyway. Mr. Lakin's actions also resulted in no actual injury to the parties because an Appeals Court reversed respondent's order for a new trial based on the law, not on his misconduct. Mr. Lakin experienced severe stress during this period due to his son's mental illness. The respondent claimed that the tickets provided a way to spend time with his troubled son. Although the referee noted the son's mental health issues, he did not list it as a mitigating factor in his report.

The court relied on findings in Florida that he had no ill intent and there was no actual prejudice.

There is no indication that the court considered the fact that it was a Red Sox game as a mitigating factor. (Mike Frisch)

November 19, 2019 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, November 14, 2019

Gavel Down, Ill Feelings Up

The Florida Supreme Court will publicly reprimand a judge

This case stems from Judge Lemonidis’s conduct in two incidents that occurred in proceedings related to two different matters: State v. Francis, 052016CF012745AXXXXX, and State v. Welch, 052000CF044961AXXXXX.

The first incident occurred during the Francis trial. In response to defense counsel’s violation of courtroom rules—specifically, his failure to “address[] all participants by their surname[s]”—Judge Lemonidis employed an “adversarial tone and demeanor when” speaking to “the defendant and his attorney.” On at least five separate occasions, “Judge Lemonidis repeatedly and loudly struck her gavel” while admonishing defense counsel for using only the defendant’s first name. Early in the proceedings, Judge Lemonidis was warned that a juror had been overheard “commenting about [her] treatment of the defense counsel.” But she continued to reprimand defense counsel in full view of the jury, often using “facial expressions and a tone of voice” that indicated her frustration. Judge Lemonidis behaved similarly in her interactions with witnesses and others involved in the proceedings, “at times appearing openly annoyed . . . by the person she was addressing.”

The second incident occurred as “Judge Lemonidis presided over a retrial of the penalty phase” in Welch. The defendant had previously pleaded guilty to two counts of first-degree murder, for which the State sought the death penalty. When the jury declined to recommend the death penalty, Judge Lemonidis held a sentencing hearing.

During the hearing, Judge Lemonidis listened to impact statements from the victims’ family members before “impos[ing] the legally required life sentences.” Judge Lemonidis made the following remarks during the sentencing colloquy:

And uh sir, I cannot disagree with a single thing that [the victim’s family member] said and I’m glad she said it.
. . . .
[Other impact speakers] are far more gracious soul[s] than a person like you deserves. And that is something you’re going to get to ponder for the rest of your miserable life. There is a Chinese proverb, do good, reap good, do evil, reap evil—which section will you sit in sir? There’s no doubt in my mind. And I tend to agree that  the outcome might have been different had this been three years ago. . . .
. . . .
I hope you see the [victims’] faces on every single face you see. You have—The collateral damage that you have caused, sir, is immeasurable and your life is—is not worthy of what you have done to these people. I do hope you do fight for your life every minute of every day. And that would be the only reason that I would hope your life is any longer than six weeks.

The judge stipulated to Canon violations

we are particularly concerned by “Judge Lemonidis’[s] failure to exercise self-control” during the Francis trial after she was informed that a juror had commented on her perceived dislike of defense counsel. Such an allegation should have made Judge Lemonidis aware of the need to “regulat[e] her own conduct” to preserve the appearance of impartiality. We further agree that Judge Lemonidis’s comments during the Welch sentencing hearing—especially those articulating a desire to see the defendant “fight for [his] life” or die within the next six weeks—compromised the integrity of the judiciary. As observed by the JQC, “it is essential” that judges refrain from “degrad[ing] the solemnity of proceedings by casting insults and abuse upon litigants.”

In Florida, the public reprimand requires a personal appearance before the Court

at a time to be established by the Clerk of this Court.

(Mike Frisch)

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

Wednesday, November 13, 2019

The Motivated Magistrate

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

A full-time magistrate judge inquires into the propriety of operating a motivational speaking business and serving as an independent motivational speaker. The speaking engagements would not conflict with the judge’s judicial duties because the magistrates in that county work on 12 hour rotations, with two days on and two days off. Any speaking engagements would be set for the judge’s off-duty days. The speeches would consist of personal stories leading up to the judge’s practice as an attorney-- i.e., childhood, upbringing, family, law school. The judge intends to steer away from discussing the judge’s present employment as a magistrate.

Nope

due to the nature of motivational speaking, the judge will be offering up personal anecdotes from the judge’s life. However, the judge no longer practices law so the judge cannot claim to be a practicing lawyer during the speaking events; at the same time, the Code of Judicial Conduct would prevent the judge from discussing the judge’s current position because that could be viewed as a violation of Canon 2B: “A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others[.]” Thus, we must conclude that a full-time judge cannot also be engaged in business as a motivational speaker.

(Mike Frisch)

November 13, 2019 in Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, November 12, 2019

Judges Gone Wild; Altercation Started With Middle Finger Salute

The Indiana Supreme Court suspended three judges for a much-reported incident in a White Castle parking lot

We find the Respondents—the Honorable Andrew Adams, Judge of the Clark Circuit Court , the Honorable Bradley B. Jacobs, Judge of the Clark Circuit Court , and the Honorable Sabrina R. Bell, Judge of the Crawford Circuit Court—engaged in judicial misconduct by appearing in public in an intoxicated state and behaving in an injudicious manner and by becoming involved in a verbal altercation. We also find that Judge Adams and Judge Jacobs engaged in judicial misconduct by becoming involved in a physical altercation for which Judge Adams was criminally charged and convicted. Respondents’ actions were not merely embarrassing on a personal level; they discredited the entire Indiana judiciary.

This matter is before us on the Indiana Commission on Judicial Qualifications’ (“Commission’s”) “Notice[s] of the Institution of Formal Proceedings and Statement of Charges” against Respondents. After charges were filed, each Respondent separately tendered, jointly with the Commission, a “Statement of Circumstances and Conditional Agreement for Discipline” stipulating to certain facts.

Although these proceedings were filed under different case numbers, we issue a single opinion for all three cases because the misconduct charges stem from the same incident.

The judges were attending the Spring Judicial College and the night before

At around 12:30 a.m. on May 1, Respondents and Clark Circuit Court Magistrate William Dawkins (“Magistrate Dawkins”) met at a local bar, where they continued to drink alcohol. At around 3:00 a.m., the group walked to a strip club and tried to enter, but found that it was closed.

The group then walked to a nearby White Castle. While Magistrate Dawkins went inside, Respondents stood outside the restaurant. At around 3:17 a.m., Alfredo Vazquez and Brandon Kaiser drove past the group and shouted something out the window. Judge Bell extended her middle finger to Vazquez and Kaiser, who pulled into the White Castle parking lot and exited the vehicle. Judge Bell, who was intoxicated, has no memory of the incident but concedes that the security camera video shows her making this gesture.

A heated verbal altercation ensued, with all participants yelling, using profanity, and making dismissive, mocking, or insolent gestures toward the other group. At no time did Respondents move to another location in the parking lot to avoid a confrontation or de-escalate the conflict.

After a verbal exchange between Judge Bell and Vazquez, a physical confrontation ensued. At one point, Judge Jacobs had Kaiser contained on the ground. With his fist raised back, Judge Jacobs said, “Okay, okay, we’re done, we’re done,” or “This is over. Tell me this is over,” or words to that effect. At another point during the confrontation, Judge Adams kicked Kaiser in the back. The confrontation ended when Kaiser pulled out a gun, shot Judge Adams once, and shot Judge Jacobs twice.

Judge Adams and Judge Jacobs were transported to local hospitals for treatment of their serious injuries. Judge Adams, who sustained a single gunshot wound to the abdomen, had two emergency surgeries, including a colon resectioning. Judge Jacobs, who sustained two gunshot wounds to the chest, also had two emergency surgeries and was hospitalized for 14 days.

The court

While in town to attend a statewide educational conference for judicial officers, 10 hours before the program convened, Respondents walked the streets of downtown Indianapolis in a heavily intoxicated state. When Judge Bell extended her middle finger to a passing vehicle, neither Judge Adams nor Judge Jacobs discouraged the provocation or removed themselves from the situation. Instead, all three Respondents joined in a profane verbal altercation that quickly turned into physical violence and ended in gunfire, and in doing so, gravely undermined public trust in the dignity and decency of Indiana’s judiciary.

Sanctions

The Court orders that Andrew Adams, who already is under an interim suspension, shall be suspended without pay from the office of Judge of the Clark Circuit Court 1 for sixty (60) days, effective immediately...

The Court orders that Bradley B. Jacobs shall be suspended from the office of Judge of the Clark Circuit Court 2 without pay for thirty (30) days commencing at 12:01 a.m. on Friday, November 22, 2019...

The Court orders that Sabrina R. Bell shall be suspended from the office of Judge of the Crawford Circuit Court without pay for thirty (30) days commencing at 12:01 a.m. on Friday, November 22, 2019. 

(Mike Frisch)

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

"That's Your License Counselor"

The New York Commission on Judicial Conduct has admonished a judge

Respondent, Genine D. Edwards, a Justice of the Supreme Court, Kings County, was served with a Formal Written Complaint dated May 21, 2019, containing one charge. The Formal Written Complaint alleged that on March 9, 2017, while presiding over a trial in Carolyn Thomas v. Quest Livery Services, LLC et al., respondent threatened to file a professional grievance against an attorney unless his client immediately offered to settle the case for $25,000.

In closing argument in the underlying case

On March 8, 2017, the attorney for defendants Urbina and Bahiro, Michael L. Tawil, Esq., delivered a summation in which he made the following statement:

On the other hand, you have Mr. Batista. He's on the phone talking to his female girlfriend or someone. He's selling cell phones to his passenger, he's listening to the radio, he said they're having a good time in the car. They're having a good time and he's paying attention to the passenger, to his girlfriend, probably to the radio. For all we know, he could be frying up some platanos in the front seat. We don't know. But he's not paying attention to the road, what's going on around him, okay.

The next day, March 9, 2017, before the jury was charged, respondent conducted an off-the-record conference in chambers with both Mr. Tawil and his client's insurance adjuster for the purpose of settling the case and addressing Mr. Tawil's summation remark.

During the off-the-record conference, respondent said that Mr. Tawil's statement during summation about platanos was "racist" and that she and her court staff were offended by his remark. Respondent then told Mr. Tawil, "What's going to happen now is your client is going to pay $25,000 to settle this case right now or I am going to report you to the Appellate Division Second Department. That's your license counselor.''

The insurance adjuster called his supervisor and then advised respondent that his client refused to settle the case for $25,000.

The jury returned a $200,000 verdict that was reduced to $65,000. The judge did not file a bar complaint

Respondent acknowledges that it was improper to state that she would file a professional grievance against Mr. Tawil unless his client settled the case for a specific sum, even if she believed that Mr. Tawil committed an ethical violation. She recognizes that her words may have created the appearance that she was attempting to use Mr. Tawil's alleged misconduct as leverage to induce his client to settle the case.

(Mike Frisch)

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

Monday, October 28, 2019

Never The Mark Twain Shall Meet

From the Florida Judicial Ethics Advisory Committee

Opinion Number: 2019-30
Date of Issue: October 16, 2019

ISSUE

May a judge publish a work of fiction using a pen name?

ANSWER: Yes, as long as the judge’s writings do not cast doubt upon the judge’s impartiality, interfere with the performance of professional duties, or demean the judge’s office.

FACTS

The inquiring judge has written a historical novel and inquires whether the Code of Judicial Conduct allows the book to be published under a pen name.

 

DISCUSSION

The judge’s inquiry is similar to that in Fla. JEAC Op. 98-01, wherein the judge had written what was described as a “crime novel.” The 1998 opinion provides a history of prior inquiries regarding the authorship of books, but none of those inquiries involved works of fiction. This Committee perceived no difference, but cautioned the judge that the novel should not “cast reasonable doubt on the judge’s capacity to act impartially as a judge, demean the judicial office, or interfere with the proper performance of judicial duties.” See also Fla. JEAC Op. 10-12, wherein the judge wanted to publish a children’s book. The judge posing the current inquiry acknowledges having read JEAC Op. 98-01.

The Committee sees no ethical dilemma in the use of a pen name. If the practice was good enough for Mark Twain, Stendhal, Trevanian, and others, there is no reason to suspect that the inquiring judge cannot follow suit.

We are mindful of the cautionary language in Op. 98-01 regarding the potential for even fictional writings to demean the author’s judicial office. Fla. JEAC Op. 98-01 did not give explicit guidance as to what sort of fiction might cross this line. As one committee member observed, “The only way to make that kind of assessment is to read the whole book.” We conclude that the fact this judge proposes to write historical fiction - and not, presumably, a thinly-disguised roman à clef - should sufficiently insulate the book from any violations of the Canons, particularly since the judge’s name will not even appear as the author.

(Mike Frisch)

October 28, 2019 in Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, October 17, 2019

The Law Of Foul Language

A village court justice has been removed from office by the New York Commission on Judicial Conduct for email statements to a client in his (permitted) part-time law practice

Between October 24, 2014, and February 22, 2015, respondent sent nine emails in connection with the Family Court matter to the Colemans at their shared email account in which he:

  • Referred to their daughter several times as a "bitch";
  • Stated that their daughter's "lawyer is a cunt on wheels (sorry for the profanity ... and don't quote me), so be prepared" and, in another email, referred to the lawyer as "eyelashes";
  • After cautioning the Colemans not to contact their grandchild's school, stated, "You should know by now that people who work in schools are assholes" 1;
  • Stated, with respect to a scheduled court appearance, "We will appear entirely calm and reasonable .. .let your daughter act like the asshole she is";
  • Stated in the subject line of an email, in reference to the daughter and her former husband, "THE TWO SCUMBAGS WERE SERVED"; and
  • Stated in reference to the Family Court referee, around the time respondent advised the Colemans to withdraw their petition, "[Y]ou may have noticed that the 'judge' is an asshole. An 'asshole' can issue a warrant for your arrest."

In February 2015, the Colemans withdrew their petition for visitation and the matter was discontinued.

Sanction

Based on the totality of the record before us, including the nature and frequency of respondent's comments, his repeated use of such language to legal clients, and his earlier caution for making sarcastic and disrespectful comments in court, we conclude that respondent lacks fitness to serve as a judge and, accordingly, that his removal from office is warranted.

Over a period of several months, respondent's email communications with his clients, his former house cleaner and her husband whom he was representing in a grandparent visitation matter, contained crude and derogatory epithets referring to various individuals involved in their case. In the context of informing and advising them about the case, he referred to the clients' daughter and her former husband, his clients' adversaries in the matter, as "the two scumbags," and referred to the daughter as an "asshole" and a "bitch" ( or "that bitch") on multiple occasions. Cautioning his clients not to contact their grandchild's school, he used the same profanity referring to the school's staff ("You should know by now that people who work in schools are assholes").

Referring to the daughter's lawyer, respondent's language was equally vulgar and sexist ("a cunt on wheels" and "eyelashes"). His profane insults extended even to the court referee ("you may have noticed that the 'judge' is an asshole. An 'asshole' can issue a warrant for your arrest").

The impropriety of such language requires little discussion. Criticism of individuals involved in his clients' case is not the issue here, nor is the use of profanity in communicating with his clients. However, as the Court of Appeals has held, using crude language that reflects bias or otherwise diminishes respect for our system of justice, even off the bench, is inconsistent with a judge's ethical obligations.

(Mike Frisch)

October 17, 2019 in Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, October 15, 2019

Oh Brother

The New York Commission on Judicial Conduct has censured a judge who presided over more than 2,500 civil matters involving an organization that his brother was associated with

from November 2005 through December 2016, respondent presided as the judge of record for more than 2,500 civil matters involving Cornerstone Community Federal Credit Union ("CCFCU"), notwithstanding that his brother was an officer and board member of CCFCU.

Sanction

In accepting the jointly recommended sanction of censure, we have taken into consideration that respondent was cooperative with the Commission and there was no indication that respondent gave preferential treatment to the CCFCU. Respondent acknowledged that his conduct was improper and that he should have taken steps to ensure that he did not preside over CCFCU matters at the outset of his tenure as a judge. We also note that respondent has expressed remorse for his conduct. We trust that respondent has learned from this experience and in the future will act in accordance with his obligation to abide by the Rules Governing Judicial Conduct.

(Mike Frisch)

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

Thursday, October 10, 2019

Harassment And Other Misconduct Draw Indefinite Suspension

The Ohio Supreme Court has sanctioned a former judge as described by Dan Trevas

The Ohio Supreme Court today indefinitely suspended former Tenth District Court of Appeals Judge Timothy S. Horton from practicing law, rejecting his claims that he should receive a more lenient sanction for his misconduct.

In a unanimous decision, the Court found Horton of New Albany violated multiple rules governing the conduct of Ohio judges and the rules governing the conduct of Ohio attorneys. Writing for the Court, Chief Justice Maureen O’Connor stated that Horton’s actions “impaired the public’s faith in an impartial judiciary,” and were particularly harmful to his judicial staff.

“His actions — abusing his staff, allowing his staff to use county time and materials to work on his campaign, filing false campaign-finance reports, and apparently attempting to use his role as a judge, including his previous rulings, to win endorsements and campaign contributions — undermined the public’s faith in the judiciary,” the opinion stated

Judge Cited for Campaign and Sexual Misconduct
Horton served as a Franklin County Common Pleas Court judge from 2006 until his 2014 election to the Tenth District. The Office of the Disciplinary Counsel filed a complaint against Horton in January 2018, and Horton resigned from the bench in February 2019.

The disciplinary counsel’s charges of rule violations stemmed from three separate circumstances, which included Horton’s guilty plea to misdemeanor charges for failing to file accurate campaign finance statements, misusing county resources and staff for campaign work, and sexually harassing his legal intern and his secretary.

The panel conducted a five-day hearing where 16 witnesses testified. The panel concluded Horton violated the Code of Judicial Conduct and the Rules of Professional Conduct, and recommended he be suspended for two years with one year stayed. The full board adopted the panel’s findings, but recommended to the Supreme Court that Horton be indefinitely suspended and required to meet certain conditions to return to the practice of law.

Judge Directs Sexual Misconduct Toward Staff
The disciplinary complaint charged that Horton directed inappropriate sexual comments and conduct to members of his judicial staff in 2013 and 2014. His actions violated the rules that judges cannot abuse the prestige of their office to advance their personal or economic interest, or engage in sexual harassment. The Court’s opinion noted that, in 2009, the judicial code of conduct was updated to add a specific prohibition against sexual harassment and Horton’s case appears to be the first time in Ohio that a judge was found to have violated the rule.

Horton made inappropriate comments to his secretary, Elise Wyant, who was 25 years old at the time of the incidents, and to a 23-year-old legal intern, identified as M.B. in court documents. Horton would tell members of the staff they were “sexy” during work hours and commented on the attractiveness of other employees. Staff members stated they felt uncomfortable turning down Horton’s invitations to attend after-work happy hours, and Horton admitted that his behavior at happy hours and when he was intoxicated was “rude” and “obnoxious.”

M.B. testified she consented to engage in sexual conduct with Horton after her internship ended, and that Horton encouraged his friends to grope her. She testified she felt like she had to agree to Horton’s demands because of his power over her as a judge. Wyant admitted to engaging in sexual conversations with Horton, but she worried that it would affect her job if she told him she felt uncomfortable.

Horton argued the sexual activities were consensual. The Court’s opinion stated the judicial code is concerned with the actions of judges, not with the behavior of judicial staff or whether his employees acquiesced to the culture he created or consented to his advances.

“Horton engaged in sexual harassment in the performance of his judicial duties, abused the prestige of his office for his own personal interests, and acted in a manner that brings disrepute to the judiciary,” the opinion stated.

The Court agreed with the panel’s conclusion that Horton’s conduct was “predatory.”

Campaign Misconduct Violated Rules
Horton pleaded guilty to three counts of failing to file complete and accurate campaign statements during his run for judge on the Tenth District. In March 2014, he learned he would be unopposed for the seat and celebrated with a private dinner at a Columbus restaurant, which cost $1,014. Horton used campaign funds to pay for the dinner, which constituted an unreasonable and excessive campaign expense. He also spent $978 on a campaign fundraising event which only one person outside of his court and campaign staff attended. And he spent $173 on cigars to be available to campaign supporters. Those two expenditures also were found to be unreasonable and excessive.

Horton also was charged with rule violations because his staff worked on his campaign during work hours and with county resources. Horton argued that he told the staff they could “volunteer” on his campaign, and that it would be appreciated. Horton testified that he understood campaign work could not be conducted on county time and with county equipment, but that he expected his staff to be responsible for following the rules and accurately accounting for their time.

However, the panel found “overwhelming evidence” that Horton assigned Wyant campaign work during county work hours, even if he did not specifically direct her to do it while at work, and that she missed several days of work to attend campaign-related golf outings. Wyant also accepted two campaign contributions from attorneys in the judge’s chambers.

The Court rejected Horton’s arguments that he did not violate the rules because his employees chose not to follow rules regarding time-keeping and equipment use.

“If a sitting judge chooses to allow public employees to volunteer to work on his or her campaign, it is incumbent upon the judge to uphold the integrity of the judiciary by imposing clear rules prohibiting campaign work on county time or using county resources and strictly enforcing those rules,” the opinion stated.

Sanction Reflects Misconduct
The opinion noted the court takes seriously its responsibility in setting precedent concerning the sanction for a judge who violates the rules against sexual harassment. The Court stated that an indefinite suspension may not be appropriate in all cases of sexual misconduct or harassment, but it is the appropriate sanction in Horton’s case given the number of other violations, the harm to individual victims, and the harm to the public trust.

“We will protect the public by sending a strong message to members of the judiciary that abusing the trust of public employees and the public at large will result in significant consequences,” the opinion stated.

The Court conditioned Horton’s reinstatement to the practice of law on his continued participation in Alcoholics Anonymous. He also must submit to an Ohio Lawyers’ Assistance Program evaluation and comply with the recommendations arising from the evaluation; avoid contact with the former employees or interns who testified in the disciplinary proceedings; and pay for the costs of the proceedings.

2018-1746. Disciplinary Counsel v. Horton, Slip Opinion No. 2019-Ohio-4139.

Video camera icon View oral argument video of this case.

(Mike Frisch)

 

October 10, 2019 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, September 18, 2019

Judge Canned Over Facebook Share

The New York Commission on Judicial Conduct announces  the resignation of a non-attorney town court justice

Altona Town Court Justice Kyle R. Canning (Clinton County) has resigned while under formal charges by the New York State Commission on Judicial Conduct for sharing an image on his Facebook account that conveyed racial and/or political bias. Judge Canning, who resigned from office effective June 27, 2019, has agreed never to seek or accept judicial office at any time in the future. The Commission accepted a stipulation to that effect signed by the judge and the Commission’s Administrator and closed its formal proceeding.

Judge Canning was served with a Formal Written Complaint dated May 7, 2019, containing one charge, alleging that he posted an image of a noose to his Facebook account, with the annotation in white capital letters, “IF WE WANT TO MAKE AMERICA GREAT AGAIN WE WILL HAVE TO MAKE EVIL PEOPLE FEAR PUNISHMENT AGAIN.”

Judge Canning waived the statutory provision of confidentiality applicable to Commission proceedings, to the limited extent that the stipulation and Commission’s order accepting it and closing the case would be public.

Judge Canning, who is not an attorney, had been a Justice of the Altona Town Court since 2018. His current term would have expired on December 31, 2021.

The stipulation is linked here.

From his letter to the Town Supervisor

It is with a sense of despair that I find myself writing this letter. As you are aware, the Commission of Judicial Conduct has filed a formal written complaint against me. They have presented me with several different options in resolving what they claim to be a serious offense. I feel as though, due to my current financial situation and obligations to my family, I am being coerced into resigning. So effective immediately I will be vacating the office of Town Justice and I offer this letter of resignation to you for your official records. It has been a pleasure serving this town as one of its justices, and I will greatly miss my duties. l do formally apologize for the inconvenience and hardship that I have imposed on my co-justice and the Town of Altona.

(Mike Frisch)

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

Friday, August 23, 2019

No Magistrate Limbaugh In South Carolina

A no-no on Talk Radio for magistrates from the South Carolina Advisory Committee on Standards of Judicial Conduct


OPINION NO. 10 - 2019

RE: Propriety of magistrate judges hosting a radio talk show.

FACTS

Several magistrate judges wish to host a radio talk show. The judges would not be paid for their involvement. The show will be taped and edited, not live, and the judges will control the topics and narratives. The judges intend to include topics on sports law, new laws, amendments to existing laws, opinions from the Supreme Court, and court procedures, such as how to file a suit in magistrate’s court. The judges will not take questions from live callers. The judges inquire as to the propriety of such a show.

CONCLUSION

A magistrate judge should not host a radio talk show.

OPINION

Appellate Court Rule 501 SCACR, Canon 4, does allow a judge to be involved in certain community activities and is not intended to totally isolate a judge from the society in which the judge lives and works. Canon 4 permits a judge to write, lecture, teach and speak on non-legal subjects only if such activities do not demean the judicial office or interfere with the performance of his judicial duties. See Canons 4A and 4B (emphasis added). Additionally, Canon 2B, in addressing the appearance of impropriety of a judge's activities, provides that a judge should: not lend the prestige of his office to advance the private interest of others; nor should he convey or permit others to convey the impression that they are in a special position to influence him.

In associating with a radio talk show on a regular basis, the judge(s) would clearly lend the prestige of judicial office to the advancement of the radio station, in an area where the public perceives the judges to be experts. Regular appearances on a talk show (as opposed to a bar association or other organization dedicated to the improvement of the law) could detract from the dignity of judicial office, in violation of Canon 4A. Moreover, a judge cannot publicly discuss litigation he has handled, or that some other judge may have handled. Thus, a judge’s talk show could place an undue and unnecessary strain on other judges by having to decide an issue on which the judge had already publicly discussed.

For the foregoing reasons, this Committee finds it improper for a judge or judges to host a radio talk show.

(Mike Frisch)

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