Legal Profession Blog

For Judges Only

The Georgia Supreme Court has ordered a remand in a judicial misconduct matter where the Judicial Qualifications Committee had proposed removal from office

the JQC - both the Director and the Hearing Panel — made two critical legal errors that prevent us from resolving this matter now. First, both the Director and the Hearing Panel determined that the JQC has “jurisdiction” over conduct that occurs before a person becomes a judge or judicial candidate, and thus could pursue counts against Judge Coomer regarding prejudicial conduct. That is wrong. The Code of Judicial Conduct plainly applies only to conduct by judges and judicial candidates while they are judges or judicial candidates — indeed, the JQC acknowledged as much in two separate filings with this Court, not long before filing formal charges against Judge Coomer. Inexplicably, however, neither the Director’s argument to the Hearing Panel nor the Hearing Panel’s conclusion even acknowledges the JQC’s previous position; the Director’s only acknowledgement of that position came after Judge Coomer raised the issue last week, and still fails to engage with the relevant text. The Code of Judicial Conduct simply has no application to conduct by people who are not yet judges or judicial candidates, even if they later become a judge or judicial candidate.

Second, both the Director and the Hearing Panel failed to understand the circumstances in which the Constitution and our case law permits judicial discipline. Longstanding precedent makes clear that although actions taken in a judicial capacity — acting as a judge, not merely while a judge — can warrant discipline regardless of good faith, actions taken outside a judicial capacity can warrant discipline only when taken in bad faith. None of the counts against Judge Coomer allege any actions taken in a judicial capacity, and so, in order to prevail on those counts, the Director would need to prove bad faith by clear and convincing evidence. But the Director instead argued that even mere negligence would warrant discipline, without acknowledging our case law to the contrary. And the Hearing Panel accepted that argument, recommending removal based on an apparent assumption that it did not matter whether Judge Coomer violated the law knowingly or in ignorance. But bad faith requires more than ignorance, and because the Hearing Panel’s report and recommendation was ambiguous as to whether it found that Judge Coomer acted with bad faith, without clearer findings we cannot determine what, if any, discipline is appropriate.

(Mike Frisch)

Charges Involving Indiana Judge

Notice from the web page of the Indiana Courts

The Indiana Commission on Judicial Qualifications has filed disciplinary charges against St. Joseph Probate Court Judge Jason A. Cichowicz. The Commission alleges seven counts of misconduct in his role as an attorney and later as a judge related to a conflict of interest and improper dealing with a charitable trust. Judge Cichowicz is permitted (but not required) to file an answer to the charges within 20 days.

The "Notice of the Institution of Formal Proceedings and Statement of Charges" (Case No. 23S-JD-33) is public record and has been filed with the Appellate Clerk’s Office. The charges are brought by the seven-member Commission, which investigates alleged ethical misconduct by judges.

The Commission charges in two counts that when Judge Cichowicz was an attorney, he violated the Rules of Professional Conduct by having a conflict of interest while representing a client. Of the remaining five counts, the Commission charges that, after Cichowicz was elected judge, he violated judicial canons that require judges to respect the law, avoid impropriety, promote public confidence in the judiciary, and avoid abusing the prestige of judicial office to advance the private interests of another.

Generally, the Commission alleges that Cichowicz improperly continued his fiduciary relationship after becoming a judge. The Commission charges that he engaged in misconduct by using his role as the trustee of a charitable organization to donate funds to the courts for improvements. The funds were donated in a way that the public would not be able to determine the source, and the judge’s father’s business made some of the improvements.

The Supreme Court has final authority to determine what, if any, judicial misconduct occurred. The Court can dismiss the charges, accept or reject a disciplinary agreement between the Commission and Judge Cichowicz, appoint a panel of judges to conduct a public hearing, impose a fine, or impose sanctions ranging from a reprimand to a suspension to a permanent ban on holding judicial office in Indiana. More information about the Commission can be found at courts.in.gov/jqc. Judge Cichowicz is represented by attorney Donald R. Lundberg who can be reached at don@lundberglegal.com or 317-416-0733.

Among the charges involve allegations regarding remodeling in the courthouse

In the spring of 2019, Respondent asked the owner of R & K Ceramic Tile, LLC (“R & K”) to remodel or refurbish three separate break rooms in the JJC.

The owner of R & K is Kenneth Cichowicz, Respondent’s father.

The funding for the breakroom project was supplied by the Friends of the JJC at the direction or request of Respondent.

No bids or estimates from other contractors were sought for the breakroom remodeling projects.

And automobile purchases

In 2020, Respondent sought to purchase three automobiles for use by the Court Appointed Special Advocates program (“CASA”) affiliated with the juvenile court in St. Joseph County.

Seller

The Friends of the JJC then issued funds in the sum of $51,000 to Victory Auto, LLC (“Victory Auto”) for the purchase of the three automobiles.

The owner of Victory Auto is Kenneth Cichowicz (“Kenneth”), Respondent’s father.

Respondent planned with Kenneth to locate and purchase the three automobiles.

WSBT 22 reported on the charges

The charges claim conflict of interest while Cichowicz was a lawyer representing a man named Russell Cartwright, while also being a beneficiary on Cartwright's trusts and bank accounts.

As a judge, Cichowicz allegedly still held Cartwright's power of attorney. And is suspected of 'obscuring' sources of funding from Cartwright's foundation to renovate the JJC, allegedly using some of that money to benefit Cichowicz's father's businesses.

“The funds were donated in a way that the public would not be able to determine the source, and the judge’s father’s business made some of the improvements,” according to Indiana Commission on Judicial Qualifications.

According to the documents, that included an additional courtroom, remodeled breakrooms, and three automobiles to be used by the Court Appointed Special Advocates Program.

Cichowicz's lawyer said he legally used private funds at no cost to taxpayers and no benefit to himself.

“The Commission’s own statement of charges correctly asserts that Judge Cichowicz’s interest was in making improvements that would be beneficial to the important work of the St. Joseph Probate Court and the families and children it serves,” said Donald Lundberg, Judge Cichowicz’s Lawyer.

Cartwright's lawyer said he is standing by Cichowicz 100% and considers him a family member.

“Mr. Cartwright has always maintained that all actions taken by Cichowicz on behalf of Mr. Cartwright were of his own choosing and also in the best interest of our community and the children and families served by the JJC,” said Michael Misch, Cartwright’s Lawyer.

Judge Cichowicz has 20 days to respond to the complaint.

(Mike Frisch)

Satan's Sidekick

The Mississippi Supreme Court has suspended a judge for 60 days without pay

Judge Carlos E. Moore is a municipal court judge for the Mississippi cities of Grenada and Clarksdale. He also practices law with The Cochran Firm. The Mississippi Commission on Judicial Performance filed a formal complaint against Judge Moore, alleging that he improperly summoned two local police officers to the municipal courtroom in Grenada and criticized them publicly concerning a discussion about a private client of Moore’s that had occurred several days earlier at Judge Moore’s private law office. The Commission and Judge Moore ask this Court to accept the stipulated findings of fact and to approve the recommended sanctions of a public reprimand and fine of $1,500. After careful consideration of the judicial misconduct at issue, we are unable to agree fully with the recommendation of the Commission. Because Judge Moore abused the power of his office to chastise and embarrass police officers in open court concerning a matter related to the judge’s private law practice, we order a 60-day suspension from judicial office without pay in addition to the recommended sanctions.

The client and the situation

a private client of Judge Moore’s was a victim of a shooting at the Satan’s Sidekick Clubhouse in Grenada in November 2020. On December 4, 2020, Detective Sergeant Chris Brown of the Grenada Police Department (along with a Mississippi Bureau of Investigation officer and a district attorney’s investigator) interviewed the client at Moore’s private law office. During the meeting, Moore learned that a search warrant had been issued for his client’s telephone records. A disagreement arose concerning the search warrant, with Moore telling the officers he would evaluate whether the warrant was valid before advising his client to comply with it. Moore terminated the interview and told the officers to leave his office. Detective Sergeant Brown said to Moore, “I’ve got your number,” which Moore interpreted as a threat. Moore called Brown’s superior, Police Chief George Douglas, to initiate a complaint; but when he was told that the complaint had to be in writing, he chose not to file one.

Four days later, the judge summoned the officer and admonished him in open court

According to the Commission’s complaint, Judge Moore accused Detective Sergeant Brown of threatening to cause bodily harm to Moore based on the remark he had made while leaving Moore’s law office. Additionally, the formal complaint alleged that Judge Moore labeled Detective Sergeant Brown a racist. The complaint said also that Moore had threatened to have Brown arrested if he ever visited one of Moore’s properties again.

Sanction

Upon a thorough and independent review of the record, we find that a 60-day suspension from judicial office, without pay, is an appropriate sanction that reflects the gravity of this offense. Judge Moore inappropriately used a courtroom and the prestige and authority of his judicial office to make persons with whom he had a disagreement unrelated to his judgeship stand before the judicial bench and be criticized and embarrassed publicly by the presiding judge.

To make matters worse, this disagreement arose from an investigation of a criminal matter by a police department, the Mississippi Bureau of Investigation, and the district attorney in which at least one person had been shot. Clearly, Judge Moore was angry that a search warrant had been issued for his client’s telephone records. Moore acknowledged to the Commission that, “After some discussion and disagreement about the search warrant, [Moore] ended the interview and kicked all three law enforcement officers out of his office.” When he learned from the police chief that he could not lodge a complaint with the police department unless he put the complaint in writing, he embarked on another course of action.

The text of the reprimand is set forth in the opinion and will be administered in open court.

Judge Moore shall stand within the well of the court, before the bench, and the circuit judge shall read, aloud and in the hearing of all in attendance, the following public reprimand, in its entirety...

(Mike Frisch)

Nothing But Speculation And Innuendo

The Tennessee Court of Appeals affirmed the denial of a motion to recuse a judge who had engaged in an ex parte communication with an attorney who was his former judicial clerk

Following a hearing on the issue of attorney’s fees resulting from a discovery dispute, the trial judge or his office contacted an attorney for the defendants to obtain certain discovery responses that had not been filed with the court. The defendants’ attorney responded by email with the requested documents, carbon-copying plaintiffs’ counsel on the email. The trial court then entered an order awarding the plaintiffs attorney’s fees in which the fees awarded were only a small portion of those requested. The plaintiffs filed a motion to recuse, citing the communication between the defendants’ attorney and the trial judge. The trial court denied the motion for recusal. We agree with the trial court’s ultimate conclusion that recusal was not required.

The story

What occurred next is the central focus of this appeal. According to Appellants, between September 7 and September 12, 2022, the trial judge, Joe P. Binkley, Jr., contacted counsel for Appellees, Christopher B. Fowler, concerning the pending matter. There is no dispute that Attorney Fowler is the trial judge’s former law clerk. According to Appellants, the exact nature of the communication has never been disclosed.

What is known is that on September 12, 2022, Attorney Fowler sent an email to the trial judge’s judicial assistant attaching certain discovery documents that had apparently been requested by the trial judge.

Opposing counsel was copied on the response.

The court

The question in this case, however, is not whether the trial court committed a legal error when it relied on these discovery responses in its order awarding attorney’s fees to Appellants. See Duke, 398 S.W.3d at 668. Nor is the ultimate question whether the interaction between Appellees’ counsel and the trial judge constitutes an ex parte communication prohibited by our rules of judicial conduct...

Here, while the trial court’s action may have been myopic, as it led to the present recusal effort, Appellants have not presented anything that would cause us to depart from the reasoning employed by the Patterson and Runyon panels when faced with very similar fact patterns. Indeed, like in those cases, Appellants have presented nothing but speculation and innuendo to suggest a lack of impartiality on the part of the trial judge. In this case, the trial court did nothing more than ask to be supplied with discovery responses that, although they had not yet been filed with the court, all parties had been privy to and no party now disputes. This request was directly in response to Appellants’ efforts to obtain attorney’s fees related to the parties’ discovery dispute and was merely meant to confirm what was argued at the September 2022 hearing. Moreover, counsel for Appellees promptly and properly informed counsel for Appellants when it submitted the requested documents to the trial court. Under these circumstances, even if we assume that the trial court’s communication constituted an impermissible ex parte communication, we cannot conclude that the trial court’s action would cause a reasonable person to question its impartiality. We therefore affirm the trial court’s decision to deny Appellants’ recusal motion.

(Mike Frisch)

Bully Pulpit

The Akron Beacon Journal reported on a recent proposed two-year suspension of a judge from the Ohio Board on Professional Conduct.

The Board further recommends he be suspended from judicial office.

The report says Hoover "engaged in misconduct totaling 64 violations that impacted the liberty and due process rights of 16 unrepresented defendants who were economically disadvantage and, in some cases suffering from mental disorders and/or substance abuse."

The board's 58-page fact-finding report also concluded that Hoover "displayed an unwillingness to acknowledge his misconduct and the harm caused by his actions."

The report includes an in-court exchange between Hoover and an individual who had failed to complete payment of a fine and court costs. The person spent seven days in jail, with a credit of $50 for each day.

But the jailed man was subject to only two days in jail based on the amount of the fine, the finding concludes. In the exchange, the man expresses concern that spending time in jail will affect his employment.

"Yeah. It probably will," Hoover says. "That's the problem with screwin' with me."

In another example, the finding determines Hoover was "demeaning and sarcastic" to a person who had unpaid fines. In another, he calls someone in court a "deadbeat."

In addition to its recommendations for disciplinary action, the finding notes positive aspects of Hoover's tenure as judge in the municipal court.

"Based on the evidence presented at the hearing in this matter, there is no question that Respondent has done great things for the Stow Municipal Court, many defendants, and the community," it states. "However, 'good intentions do not excuse him from complying with the Code of Judicial Conduct.' "

Tom Bevan, a founding of the Bevan & Associates law firm and chairman of the Summit County Democratic Party, said the findings did not surprise him.

"We did run somebody against him last time because we had heard (about) his conduct," Bevan said Saturday.

Bevan said the conduct described in the report "should never be tolerated from a judge — ever."

"I'm deeply disappointed that a judge would act in this manner," he said. "He was being a bully."

Hoover's attorneys said they plan to file an objection.

The disciplinary recommendations now go to the Ohio Supreme Court, which will consider action against Hoover — who will be given an opportunity to file an objection to the findings.

Throughout the proceedings, Hoover has maintained that he did not act improperly in his handling of the defendants mentioned in the complaint.

(Mike Frisch)

In Words And Tone Of Voice

The New York Commission on Judicial Conduct has accepted the resignation of a County Court Judge who was discourteous to unrepresented persons seeking protection orders and other relief.

From the stipulation

Respondent was disrespectful, disparaging, sarcastic and otherwise discourteous toward them, in both words and tone of voice...

The events in question occurred in October 2019, May 2019, July 2018, and June 2018. The charges contained quotations from audio recordings and transcriptions in which, among other things:

Respondent asked a petitioner, "What kind of a kook are you?": belittled her concern about missing school in order to be in court; said "everything that you told me was bullshit"; and told the petitioner to "get your ass out of bed and get here at 9:00 in the morning" or her petition would be dismissed and she could  "ask the director [of your school] to protect you."

Respondent said to another petitioner: "So listen, why should I give you an order of protection ... if you keep going back yo this guy? ... You went looking for him. You got into the car, okay, and you obviously want to be with him because you keep going back to him."

Respondent said to a third petitioner; "So, three weeks before you found out that he had another honey 0n the side, were you afraid of him? ... Oh, you were'! Well, then why were you with him for then.

The five recipients of these comments were four women and one man. (Mike Frisch)

The Sting

A probate matter in which the judge had entered orders that extinguished two attorneys liens drew a timely recusal motion and orders vacated by the Tennessee Court of Appeals

All these facts are but a prelude to the controversy giving rise to this appeal. On August 4, 2022, attorney Joseph Townsend defeated Judge Webster for reelection. The new judge had some history with the Watson Brown firm. While still an attorney in 2018, Judge Townsend was hired as an expert witness in opposition to a fee application by the Watson Burns firm. He was highly critical of the fee request, calling it “clearly excessive” and criticizing their billing records as “unintelligible.”

Apparently, attorney Townsend’s criticisms still stung, for at a status conference on the issues of freezing access to the trusts and enforcement of the firms’ liens on September 26, 2022, Mr. Watson made an oral motion asking for Judge Townsend’s recusal. Judge Townsend stated, “Yeah, I don’t think I have a conflict, but we’ll look at the issues in this case and have a full disclosure, et cetera, et cetera, obviously before we proceed too far.” The next day Judge Townsend held the previously scheduled status conference regarding the mediation. Judge Townsend entered the four settlement orders, thereby extinguishing the firms’ liens on the 1984 and 1991 Trusts. No one raised the issue of recusal. The firms filed motions to alter and amend the ruling, which the court orally denied on November 2, 2022, maintaining that the firms were not parties before the court.

As to recusal

Judge Townsend did not follow the Supreme Court’s rules. He entered an order on December 7, 2022, without stating good cause for not obeying the dictates of Rule 10B, § 1.02, and he failed to address the motion to recuse as required in Rule 10B, § 1.03. Consequently, we must vacate the December 7, 2022 order and any orders in the interpleader action that Judge Townsend has filed since. Furthermore, Judge Townsend is instructed to file a response to the motion to recuse in the interpleader action promptly. If he denies the motion, the response must state in writing the grounds upon which he denied the motion. If he denies the motion, the firms may seek further appellate relief as they deem necessary and appropriate.

(Mike Frisch)

I Read The Sun-News Today Oh Boy

The New Mexico Supreme Court has publicly censured a judge for failure to recuse herself after a newspaper article had called her conduct into question.

The judge had appointed a parenting coordinator in a child custody case.

Three years later, the father retained new counsel who filed two motions. One sought recusal; the other sought removal of the monitor and revocation of his quasi-judicial immunity.

 One week after Father’s counsel filed these motions and before a hearing was held, the Las Cruces Sun-News published an article reporting many of the allegations contained in the two motions—that Dr. Smith was not a qualified parenting coordinator and that Judge Rosner recommended and issued an order appointing Dr. Smith despite his purported lack of qualifications. The article criticized the Third Judicial District’s parenting program, along with Judge Rosner and her involvement in that program and her subsequent order appointing Dr. Smith.

The judge read the article and felt "personally attacked" but did not recuse herself

Following the hearing on the two motions, Judge Rosner issued an Order Denying Respondent’s (Father’s) Motion to Recuse for Cause, and Order Denying Respondent’s (Father’s) Motion to Remove Parenting Coordinator and Revoke Parenting Coordinator’s Quasi-Judicial Immunity. In paragraph 17 of the order, Judge Rosner stated:

Rather than bring to [the c]ourt her claims of alleged misconduct by Harold Smith and this [c]ourt, [Father’s counsel] took her motions to the Las Cruces Sun News, without input from anyone other than herself. At the hearing, on her two motions . . . her client, [Father], testified under oath, that he had never had any contact nor had he made any statement to any reporter of the Las Cruces Sun News. The article, which appeared on the front page of the Las Cruces Sun News on July 21, 2020, sought to damage Harold Smith and this [c]ourt by implying an inappropriate relationship between Harold Smith and the undersigned judge, and bias by this [c]ourt and Harold Smith against [Father]. Noteworthy, is the failure of [Father’s counsel] to attack Dr. Caplan’s report which is the most damaging report against her client . . . . At the request of [Father’s counsel], Dr. Caplan’s report has been sealed.

Three days later, the judge granted a renewed recusal motion.

The judge admitted violations of judicial canons

Based on these admitted violations, Judge Rosner agreed to (1) enroll in and successfully complete, at her own expense, Ethics and Judging: Reaching Higher Ground, a National Judicial College Course and (2) receive a public censure to be published in the State Bar of New Mexico Bar Bulletin.

The court

While we commend Judge Rosner for recusing when she realized she could not be impartial, her use of the order denying Father’s motions, a tool used to carry out her official judicial duties under Article VI, Section 1 of the New Mexico Constitution, to respond to criticism was inappropriate. It was also inappropriate to reference the conclusion of the sealed doctor’s report, not only because it was sealed, but also because it had no bearing on the disposition of Father’s motions. While judges may respond to public or personal criticism, they may not do so in carrying out their official judicial duties. Rule 21-300 NMRA (“A judge shall conduct the judge’s personal and extrajudicial activities to minimize the risk of conflict with the obligations of judicial office.”). Having misused the order denying Father’s motions to respond to public criticism, we conclude that Judge Rosner violated Rule 21-204(A)-(B) and Rule 21-201(A), (E).

We recognize the challenges faced by district court judges, often presiding over emotionally charged cases involving litigants and lawyers who might challenge their authority, insult their integrity, impugn their good names, and even attempt to bait them into losing control. In those instances, district court judges, no matter how egregious the behavior by counsel or clients, must remain above the fray in order to carry out their official duties. Judges are equipped with tools to address inappropriate behavior on the part of the parties and counsel, in the form of sanctions and contempt powers, which should be used as needed. Judges must always remain cognizant that an essential function of their role in the judiciary is to be a neutral arbiter even in the throes of highly adversarial proceedings. By adhering to these responsibilities, the judge may effectively avoid any appearances of impropriety, as well as actual instances of impropriety.

While Judge Rosner’s admitted conduct violates several of the Rules of Judicial Conduct, this Court looks at various factors when deciding to impose judicial discipline including “the nature of the misconduct and patterns of behavior[,] . . . the seriousness of the transgression, the facts and circumstances that existed at the time of the transgression, the extent of any pattern of improper activity, whether there have been previous violations, and the effect of the improper activity upon the judicial system or others.” Schwartz, 2011-NMSC-019, ¶ 25 (internal quotation marks and citation omitted).

Censure was deemed appropriate. (Mike Frisch)

Macon Place

The Missouri Supreme Court ordered a suspension without reinstatement for at least two years for a former  judge's misconduct in an unsuccessful reelection campaign in Macon County

A reprimand was imposed on these charges in November 2015

The misconduct stemmed from four counts: (1) engaging in a text message exchange with a candidate for circuit clerk that threatened Prewitt’s involvement in the circuit clerk’s campaign if she did not remove his opponent’s signs from her yard; (2) maintaining a Facebook account identifying Prewitt as an associate circuit judge through which he made 11 postings encouraging others to attend certain charitable events or make donations to certain charities; (3) criticizing other judges in a Facebook post by stating “unlike many other judges, I am very open about decisions I make in cases because I am proud of the work I do”; and (4) questioning a prosecutor during an arraignment about the strength of a case, advising that he did not want to unnecessarily prevent the defendant from playing football and that the prosecutor should dispose of the case.

The present charges

The current information OCDC filed against Prewitt contains two counts that remain before this Court. Both counts relate to Prewitt’s campaign for associate circuit judge against Burks in the course of the 2018 election. One count encompasses threats made to Burks. The other involves Prewitt’s speech at a campaign event. Prior events and interactions between Prewitt and Burks set the context for this Court’s findings.

Prewitt and Burks previously opposed each other in the 2014 election for associate circuit judge. Prewitt, the incumbent, ran as a Republican. Burks ran as a Democrat. Directly before the election, Burks sent out a mailer disputing several of Prewitt’s campaign claims. The top of the mailer stated: “PREWITT…WORKING TO MISLEAD VOTERS.” Prewitt defeated Burks in the election.

Burks intended to run in 2018; the opponents had an encounter

The details of the encounter are in dispute. According to Burks, Prewitt inquired whether she intended to run against him in the election. Burks responded she was still undecided. Prewitt purportedly stated, if she were to run against him that he would file an ethics complaint premised on the mailer sent before the 2014 election and that he knew about Burks’ husband’s conduct. Prewitt denies making any statement beyond asking Burks about her intention to run.

While it was not publicly known, Burks' husband had strayed

At some point prior to the 2018 election, at a prayer event on the grounds of the local courthouse, Prewitt informed Pastor Bray that, if Burks were to run for the associate circuit judge position, it would cause a rift within the church. Pastor Bray was a friend of Burks’ husband. Prewitt provided Pastor Bray with details of Burks’ husband’s infidelity, noting the husband had broken up marriages in town. Pastor Bray relayed information about Prewitt’s comments to Burks’ husband. Prewitt, in his testimony before the disciplinary panel, confirmed it was possible he discussed the affairs with Pastor Bray in passing. When Burks learned of the conversation, she was upset Prewitt was interfering with her family’s church-related life.

There was evidence of Prewitt's discussions with others but nonetheless

Burks entered the 2018 election as an Independent candidate. She won the election and took office in January 2019. Prewitt did not follow through on publishing advertisements detailing the affairs of Burks’ husband or publicly stating Burks was supporting a predator. Prewitt could not unequivocally say he did not ever bring up the topic of Burks’ husband’s infidelity himself. He testified, “It was very surprising to a vast number of people given that she would be putting herself in the public eye.” He admitted one of the reasons he did not disseminate campaign information discussing the affairs was due to the complaint pending with the Judicial Commission.

Threats against Burks

Prewitt’s briefing acknowledges he “sought to dissuade [Burks] running for the office he held.” In accord with the panel, this Court finds Prewitt was doing more than warning his political opponent about topics that could emerge during the course of the campaign. Rather, Prewitt was attempting to coerce Burks into not running against him. First, he threatened that Burks’ filing would result in him filing an ethics complaint against her based on the previous campaign. Second, he threatened to give speeches and send out fliers in which he would call her husband a “predator.” Intertwined in this threat was Prewitt’s intention of making a point that Burks’ children, who were unaware of the affair, would be certain to learn of it.

A judge’s threat to file an ethics complaint against a lawyer, if and only if that lawyer decides to oppose him in an election, is impermissible.

In the discipline hearing

In his testimony before the panel, Prewitt refused to characterize as threats the prospect of sending out a flier labeling Burks’ husband as a “predator” and making known the information concerning the affairs. Prewitt believed Burks’ husband’s affairs to be relevant to Burks’ campaign because, if elected, Burks would oversee divorce cases and exercise her discretion in those cases. Even if this background information were relevant, a position merely assumed here, no legitimate purpose, other than to convince Burks to back out of the contest, can be discerned from Prewitt’s threat to ensure Burks’ children found out about the affairs. Prewitt responded he was “backed … into a corner” when Burks questioned whether he stated he would make sure her kids found out about their father’s extramarital relationships. Prewitt also did not deny characterizing the upcoming campaign as a “bloodbath.”

Prewitt's knowledge of an affair was a client confidence and not generally known

The extent of knowledge of the affair between Burks’ husband and BM is of relevance here. BM testified at Prewitt’s disciplinary hearing. Prewitt represented BM in her divorce, which was filed in 2009. BM testified she told a handful of friends about the affair but that “[n]ot everyone” in town or in Macon County knew about it. Several of OCDC’s witnesses answered questions about the extent of knowledge of the affairs. Pastor Bray was aware Burks’ husband had an affair before Prewitt approached him with the information. He learned of the information from his duties as a pastor, but he acknowledged he had also heard about it through the community. Olinger, the former police chief, did not hear the affairs discussed in 2018 by anyone other than Prewitt. He did not know about the affairs. In his experience as police chief, the affairs were not generally known in the community, although he admitted it would have been easily possible that others would have known about an affair even though he did not. Holman learned of the affairs sometime between 2013 to 2015. AL, one of the women with whom Burks’ husband had an affair, was the wife of a friend of Holman. Holman learned of the affair “just in passing around town” and confirmed it with his friend. He testified the affairs were not widely known in the Macon County community at first but “it got a little louder as the divorce [of BM] . . . started to take hold.” Meisner was aware Burks’ husband had one affair—the affair with AL. At some point before the 2014 election, Burks told Meisner her husband had been unfaithful. Meisner did not learn of the second affair—the affair with BM—until counsel for Prewitt took his deposition in this matter. According to Meisner, no one in the community was discussing the affairs.

Not "generally known"

While allowing that salacious details may travel quickly in a small town, as was often referenced in testimony, this Court does not find the information that BM engaged in an affair with Burks’ husband was generally known. It may be that rumors of an affair were generally known, and it could be the case that the affair with AL was generally known, but this Court finds from the record that the affair with BM was not generally known. The information was not widely recognized by members of the public in the relevant geographical area.

The court rejected the claim that the information was not confidential

Even if Prewitt discovered additional details of BM’s affair afterwards, in the course of their social engagements, use of these details would still have “relat[ed] to the representation” of BM and would have violated Rule 4-1.9(c).

Sanction

When mitigating and aggravating factors are weighed, the presumptive discipline of a suspension is not ameliorated. The abundance of factors in aggravation, in combination with the seriousness of the Rules violated and that the wrongdoer was a judge at the time of the transgressions, further moves this Court to impose a suspension...

For the foregoing reasons, this Court orders Prewitt be suspended indefinitely with no leave to apply for reinstatement for two years.

(Mike Frisch)

Insurance Claim And Recusal

The Florida Judicial Ethics Advisory Committee has issued an opinion

Civil judge who presides over insurance-related cases and who filed an insurance claim following Hurricane Michael should 1) disclose to all insurance-related litigants in their division of the judge’s filing of a hurricane-related insurance claim; and 2) recuse themselves from any cases involving the same insurance company with whom the judge’s claim is pending.  If the judge’s claim settles, there should be disclosure of the existence of the insurance claim and its settlement for a reasonable period of time after its occurrence due to the direct dealings between the judge and the insurance company. If the judge is represented by an attorney, and that attorney comes before the judge on either a contested or uncontested matter, the judge must automatically recuse himself or herself for a reasonable period of time after the representation ends.

Issue

Issue 1: Under what circumstances must judges disclose and/or recuse themselves from hurricane-related cases when they have filed an insurance claim with an insurance company that also has cases coming before them?

ANSWER: Pursuant to Canon 3E and its commentary, the inquiring judge(s) should 1) disclose that they have a filed a pending hurricane-related insurance claim to all parties or their attorneys with  hurricane-related insurance claims in their division; and 2) recuse themselves from any cases involving the insurance company with whom the judge has filed their claim.

Issue 2: What if the case settles?

ANSWER: If the case settles, the inquiring judge must disclose the existence of the insurance claim and its settlement for a reasonable period of time after its occurrence due to the direct dealings between the judge and the insurance company.

Issue 3: What if the insurance case proceeds to litigation?

ANSWER: If the case proceeds to litigation, and the judge is represented by an attorney, and that attorney comes before the judge on either a contested or uncontested matter, the judge must automatically recuse himself or herself for a reasonable period of time after the litigation ends.

(Mike Frisch)

N-Word At Home No Basis For Discipline Per Louisiana Hearing Committee

A Louisiana Hearing Committee has found no ethical violation in a (now former) judge's use of the "n" word in her home.

The report - filed today - involves an incident that took place after an attempted burglary incident of vehicles outside the judge's home.

While at home and reviewing a video surveillance tape on her home security system, she was joined by her son and his friends and was overheard saying

We have a n*****, it's a n*****, like a roach.

The recorded video was posted on the interest and "widely circulated."

The judge resigned several days later.

According to the committee

There is no ground for discipline under the Louisiana Rules of Professional Conduct for profanities or uncivil language used by a lawyer in their own home.

The committee noted that the self-imposed sanction of resignation to be "more onerous than any discipline sought by the ODC such that any requested discipline is superfluous."

The Acadiana Advocate reported on the resignation.

More than 100 people filed complaints with the Louisiana Judiciary Commission after seeing the video. Even Saturday Night Live mentioned the judge after news of the slurs traveled worldwide.

(Mike Frisch)

A Tale Of Two Chancellors

The Tennessee Court of Appeals ordered recusal of a judicial officer in a matter where the client (doing business as Doghouse Computers) is represented by the opponent he defeated (and unseated) in a recent election

This is an accelerated interlocutory appeal as of right pursuant to Rule 10B of the Rules of the Supreme Court of Tennessee from the chancery court’s denial of a motion to recuse. A new chancellor, during the course of a judicial election and shortly after the election was held, made extremely critical comments regarding the personal and  chancellor, who has returned to practice, is now representing a party before the new chancellor. The former chancellor moved for the new chancellor’s recusal in cases in which the former chancellor is appearing as counsel as well as recusal from cases involving the law firm which the former chancellor joined after losing the judicial election. The new chancellor denied the motion. On appeal, we conclude that, even in the absence of actual bias, based upon concern about the appearance of bias toward the former chancellor, recusal is warranted. This concern does not extend to the law firm the former chancellor has joined. Accordingly, we reverse the denial of recusal insofar as it concerns the former chancellor but affirm the denial of recusal insofar as it concerns the law firm.

The story

Then-attorney now-Chancellor Ben Dean ran against Mr. McMillan and defeated him in the August 2022 election. Mr. McMillan asserts that, during the course of the election, Chancellor Dean made extremely derogatory remarks about his character through public Facebook postings and that these remarks warrant recusal under Tennessee Supreme Court Rule 10B.

As an illustration, Mr. McMillan notes that during the campaign, when drawing a sharp distinction between the candidates over the question of character, the “Committee to Elect Ben Dean Chancery Judge” posted the following:

. . . My opponent keeps saying the mantra “Experience Matters,” yet he has little to nothing to say or show about anything positive he has accomplished professionally or personally in 18 years as Chancellor.

Let me tell you my mantra: “Character Matters!” More importantly, how you treat people matters. All the experience in the world means nothing if you can’t be nice and kind to people or if you are a morally bankrupt soul….

Similarly, after Mr. Dean won the election, Mr. McMillan’s stepson posted on Facebook that the politicization of the race was “a loss for the moral integrity” of the court. The “Committee to Elect Ben Dean Chancery Judge” responded:

Surely you are not suggesting his loss will result in the loss of the moral integrity of the judiciary in these two counties. I haven’t broadcasted or laid bare his many past moral failings and deep character flaws, and ran a fairly positive campaign with an actual platform of change versus attacking him and telling all the sordid details of his own personal failings. The voters have spoken and character matters!

The former Chancellor sought recusal of his successor 

In ruling on the motion to recuse in this case, Chancellor Dean declared he held “no ill will, personal bias or prejudice against Attorney McMillan.” We do not doubt either the sincerity or accuracy of Chancellor Dean’s declaration. In other words, in considering this appeal, we do not conclude that Chancellor Dean is actually biased against Mr. McMillan and do not doubt that he would be impartial in any matter in which Mr. McMillan served as counsel. The standard, however, directs courts to consider appearances and whether a reasonable, disinterested person would believe that there is a reasonable basis for questioning the judge’s impartiality.

But that appearance does not extend to the law firm

We come to the opposite conclusion, however, regarding the recusal of Chancellor Dean in cases involving Mr. McMillan’s law firm. The motion for recusal itself contains no specific allegations of bias with regard to Mr. McMillan’s law firm; it merely proceeds on a theory of taint by association. On appeal, Mr. McMillan cites to the trial court’s order as evidence of a “metastasizing cancer of bias” against the firm, asserting the trial court considered extraneous material and made a “veiled threat.” However, the record contains no objective evidence from which bias or appearance of bias against the law firm could be reasonably inferred. Having reviewed the materials appended to the motion to recuse, we conclude there is simply nothing in the record to support an inference of bias against the law firm. Compare Bean, 280 S.W.3d at 801, 806 (the judge called the attorney’s partner “the worst excuse for a lawyer that there has ever been” and requested an investigation of members of the law firm for alleged criminal conduct). Accordingly, we affirm Chancellor Dean’s denial of the motion to recuse with respect to Mr. McMillan’s law firm.

(Mike Frisch)

The Scoop

The Indiana Supreme Court has suspended a judge for one week without pay

We find that Respondent—the Honorable Jeffrey F. Meade, Judge of the Gibson Circuit Court—engaged in judicial misconduct by making intemperate comments from the bench; by holding an off-the-record, unrecorded child-in-need-of-services (“CHINS”) hearing in which he ruled on various substantive motions; and by failing to provide all parties to those CHINS proceedings with sufficient notice, an opportunity to be heard, and an opportunity to fairly participate in the hearing. Not only were Respondent’s actions prejudicial to the administration of justice in those specific cases, but they also damaged the public’s confidence in the integrity and impartiality of the judiciary more generally. For the reasons set forth below, we agree with the parties that Respondent’s misconduct warrants a seven-day unpaid suspension from office.

Intemperate remarks

During the November 2019 hearing and a hearing in May 2021, Respondent also made disparaging statements to and about the parties, including:

• Telling Father to “be quiet,” “zip it,” to “shut [his] mouth,” and to “shut up,” even after Father apologized and indicated he understood.
• Referring to Father as “Bud,” “Buddy,” “Bro,” and “Man.”
• “And then what you don’t have is, see, you don’t have the child being passed off like a football. Oh, I’ll pick—let me run for ten yards with it because I don’t want that child to go over ten extra— over ten extra yards, and then the handoff.”
• “This is just bullshit. I’m sorry, I’m a farm boy. I was raised—I’m older than you. I was scooping hog shit long before you, man. I’m going to tell you what, this is crap. It stinks. This kind of behavior stinks. Okay?”
• “Now, I’m not playing with this. Okay? This is the 10th freaking day of this hearing. Okay? And again I’m not prejudging nothing. I’m going to hear this case out and we’ll let the attorneys do their findings. Okay? But I’m going to tell you what, you best be calling daddy up to get some money coming, I’m telling you that right now, because you have intentionally interfered with this woman’s parenting time. Okay? And it’s going to cost you a bundle. Okay?”
• “This is one of the most egregious, okay, egregious interference of parenting time that I’ve ever seen. Okay? You do not follow my order again you bring your toothbrush, you’re going to be over there for days and weeks and months. Is this crystal for you, man?”

(Mike Frisch)

Casey On The Bench

A Tennessee General Sessions Court Judge has been reprimanded by the Board of Judicial Conduct for comments made to a litigant in his court.

The judge called the litigant a "tough guy" and asserted that he "hoped he would run into him someone like [him] someday."

The complainant alleged the following statement was directed to him

"If somebody called [your] grandfather an SOB we would probably in more than a cuss fight, we would be in a fist fight, and probably to the death."

The judge acknowledged the "tough guy" and "hope" remarks and further agreed that he had told the litigant's daughter to "shut up."

The judge had responded to the complaint by stating the the conduct was a reaction to a rude litigant.

The Board noted that a judge cannot deal with a rude litigant by reciprocating. Rather, "the more tense or difficult the situation, the more important it is for the judge to remain dignified and composed and not be drawn into an escalating situation."

The letter noted a previous warning for "lack of self control in raising your voice and using intemperate words in court." (Mike Frisch)

Judge Resigns

The New York Commission on Judicial Conduct reports that a Surrogate's Court judge has resigned in the face of pending misconduct allegations

Judge Thompson was charged in May 2022 with a Formal Written Complaint, alleging that she made inappropriate comments to and about employees and judges of the Unified Court System; displayed bias against various individuals and ethnicities; failed to administer Surrogate Court matters in a timely manner, leading to substantial delays; and, as a candidate for Surrogate in 2018, failed to complete mandatory campaign ethics education in a timely manner.

A formal hearing was scheduled to commence on January 17, 2023, before a Commission referee, Mark S. Arisohn.

After Judge Thompson produced a letter from her physician on November 30, 2022, claiming she was “not medically fit to stand trial at this time” and that further medical procedures were likely, the Commission authorized a Second Formal Written Complaint against her, dated December 16, 2022, alleging that she was medically unfit to remain in office.

In lieu of filing an Answer to the Second Complaint, Judge Thompson agreed to leave office permanently due to her medical situation. She also agreed to discontinue any lawsuits she had commenced against the Commission. Judge Thompson waived the statutory provision of confidentiality applicable to Commission proceedings, to the limited extent that the stipulation and the Commission’s order accepting it would be public.

Judge Thompson has served as a Judge of the Surrogate’s Court since 2019. Her current term would have expired on December 31, 2026. She previously served as a Judge of the New York City Civil Court from 2011 to 2018.

The City had reported on the matter

In December 2021, after a court inspector general’s report documented hateful statements that Brooklyn Surrogate Court Judge Harriet Thompson allegedly made in front of court staff about Hispanics, whites, gays, West Indians, the overweight and the ill, the state’s Office of Court Administration blocked the judge from hearing new cases. She was also made to surrender her keys and access cards to court facilities.

The inspector general referred the matter to the state’s judicial commission and Thompson remained on payroll during the still ongoing probe of the claims about her remarks.

On one occasion, the inspector general accused Thompson of insulting various members of the judiciary for their sexual orientation, allegedly saying, “Being gay is an abomination to mankind. Man shall not lay with man.”

On another occasion, the inspector general alleges, Thompson declared that she did “not like Hispanic people,” continuing: “They have a deceitful trait that goes way back to biblical times ... The men are always stealing, and the women are no better, they lie, steal, and use their vaginas for anything they want.”

The stipulation reached in the matter is linked here. (Mike Frisch)

Scooping Hog Sh*t: "It Stinks"

An Indiana Circuit Court Judge has been charged by the state Commission on Judicial Qualifications

At all times pertinent to these Charges, Respondent presided over a general jurisdiction docket that included criminal and civil cases. Respondent's docket includes Children In Need of Services ("CHINS") cases, guardianship cases, paternity cases, and dissolution cases.

In a paternity matter

During Father's cross-examination on November 7, 2019, Respondent exhibited impatient, undignified, and discourteous behavior with Father.

During Father's cross-examination, Respondent interrupted the cross-examination at various times, making statements that included but are not limited to:

a. Telling Father to "be quiet," "zip it," to "shut [his] mouth," and to "shut up," even after Father apologized and indicated that he understood.
b. "And then what you don't have is, see, you don't have the child being passed off like a football. Oh, I'll pick - let me run for ten yards with it because I don't want that child to go over ten extra - over ten extra yards, and then the handoff."
c. "This is just bullshit. I'm sorry, I'm a farm boy. I was raised - I'm older than you. I was scooping hog shit long before you, man. I'm going to tell you what, this is crap. It stinks. This kind of behavior stinks. Okay?"

During the November 7, 2019 hearing, Respondent also made statements about his own divorce and custody proceedings, comparing the situation with that of Mother and Father in Paternity of HL.

At a later hearing

a. Referring to Father as "Bud," "Buddy," "Bro," and "Man."
b. "Now, I'm not playing with this. Okay? This is the 10th freaking day of this hearing. Okay? And again, I'm not prejudging nothing. I'm going to hear this case out and we'll let the attorneys do their findings. Okay? But I'm going to tell you what, you best be calling daddy up to get some money coming, I'm telling you that right now, because you have intentionally interfered with this woman's parenting time. Okay? And it's going to cost you a bundle. Okay?"
c. "This is one of the most egregious, okay, egregious interference of parenting time that I've ever seen. Okay? You do not follow my order again you bring your toothbrush, you're going to be over there for days and weeks and months. Is this crystal for you, man?"

In a CHINS matter, he is alleged to have held chambers conferences off-the-record and failing to provide notice and the opportunity to be heard to all parties. (Mike Frisch)

Hold The Humor But OK To Preside At Retrial

A prosecutor's motion to disqualify the judge from presiding in the retrial of a capital murder case has been denied by Ohio Supreme Court Chief Justice O'Connor

“Tension between a judge and a county prosecutor is bound to occur in our adversary system. Both sides seek to attain justice, but they do not always agree on what that means. However, principles of professionalism require judges and prosecutors to give proper respect to each other and to treat each other with the dignity and courtesy that each office deserves.”

Alleged bias

In October 2022, Judge Howard presided over a 12-day jury trial. After two days of deliberations, Judge Howard found that the jury was deadlocked and declared a mistrial. In his affidavit of disqualification, Mr. Gmoser avers that for three reasons, Judge Howard is biased against the state of Ohio and should not preside over the retrial. First, Mr. Gmoser alleges that Judge Howard “steer[ed] the jury into a deadlock” by, among other things, giving a Howard charge despite no indication of a deadlock, denying the jury’s request to review the transcript of a witness’s testimony, and failing to remove two jurors for misconduct. Second, Mr. Gmoser alleges that throughout the first trial, Judge Howard repeatedly held off-the-record conferences in his chambers about material issues. Third, Mr. Gmoser avers that Judge Howard displayed an offensive sign in his office, made crude and sexual jokes to counsel, and failed to conduct the first trial with the decorum required for a capital case.

Judge Howard submitted a response to the affidavit and denies any bias against Mr. Gmoser or the prosecution. The judge disputes that he “steer[ed]” the jury into a deadlock and explains why he declared a mistrial. Judge Howard further notes that the state never objected to holding unrecorded conferences in his chambers and never complained about the alleged lack of decorum in the courtroom. With respect to the other allegations, Judge Howard says that he removed the sign from his office and that he never intended to offend anyone with his comments or stories—although the judge denies making any “sexual jokes.” The judge says that in the future, he will refrain from any similar attempts at humor.

No joking matter

Although some types of humor may have a place in the courtroom, a judge’s use of undignified language degrades the decorum of the court and diminishes public confidence in the judiciary. Judge Howard has recognized that his attempts at humor, including his comments about other judges, were unnecessary or ill-advised. The issue in this disqualification matter, however, is not whether Judge Howard should be disciplined for making offensive comments or displaying inappropriate signage in the judge’s chambers. The issue is whether Judge Howard should be disqualified from the underlying case due to bias against Mr. Gmoser or his office.

Law

Here, Judge Howard has apologized for his “comments or stories in chambers with counsel” and affirms that he will refrain from such comments in the future. Mr. Gmoser has not established that those comments—or any of the other behavior alleged in the affidavit—require the judge’s disqualification from presiding over the retrial.

WLWT 5 reported on the controversy (Mike Frisch)

Party Affiliation Does Not Warrant Disqualification

An elected judge's political affiliation did not warrant disqualification from a case involving a litigant with whom he is affiliated, per a decision of Ohio Supreme Court Chief Justice O'Connor

Mr. Morris has sued the Ohio Democratic Party (“ODP”) and some of its individual officers. He claims that Judge Miller has a conflict of interest because he is a member of the Franklin County Democratic Party—which Mr. Morris describes as an affiliate of the ODP—and because the judge’s campaign committee has contributed to the county party. In addition, Mr. Morris alleges that Judge Miller has demonstrated bias by ignoring some of Mr. Morris’s motions and by ruling in favor of the defendants on other matters.

Judge Miller submitted a response to the affidavit and denies any bias against Mr. Morris or in favor of the defendants. The judge acknowledges that he is a member of the ODP and the Franklin County Democratic Party and that his campaign committee has made yearly contributions to the county party.

Ruling

Judge Miller affirms that his political relationship with the ODP will not influence his decision-making. The judge’s current term expires in February 2027, and it does not appear that he is actively campaigning for reelection. Although Judge Miller personally donates a small amount each month to the ODP, there is no evidence that he holds any office in the ODP or that he is currently receiving any tangible benefit from the organization. Further, Mr. Morris claims that he seeks only injunctive relief against the ODP—that is, he seeks to get his temporary job back; he does not seek damages. We elect judges in Ohio, and just as we must ordinarily assume that an attorney’s support of a judge will not cause the judge to favor that attorney when he or she appears before the judge, see In re Disqualification of Osowik, 117 Ohio St.3d 1237, 2006-Ohio-7224, 884 N.E.2d 1089, ¶ 6, we must assume that a judge’s endorsement by or support of a certain political party will not affect the judge’s decision-making if that political party later appears before the judge. Based on this record, there is no evidence to call that general assumption into doubt.

(Mike Frisch)

Suspension Proposed For Long-Sitting Judge

A Cuyahoga County judge should be suspended for a year according to a report and recommendation of the Ohio Board of Professional Conduct.

Cleveland.com reported

The Ohio Supreme Court should remove long-sitting Cuyahoga County Common Pleas Court Daniel Gaul from office and suspend his license for one year, a disciplinary panel recommended on Friday.

A panel of attorneys for the court’s Board of Professional Conduct held that Gaul committed misconduct in eight cases spanning five years, cases that featured him coercing a man to plead no contest to charges of which he would later be acquitted, ordering a man to spend 30 days in jail for talking back to him in court, and calling multiple Black defendants “brother.”

The hearing also was the subject of reporting by the same source

Tuesday’s hearing was in response to a complaint filed by the Office of Disciplinary Counsel, a division in Ohio’s judiciary branch that pursues allegations of misconduct against lawyers and judges. Gaul, who has spent nearly 32 years on the bench, is accused of misconduct and violating the Ohio Code of Judicial Conduct and Ohio Rules of Professional Conduct.

 

Some of Gaul’s courtroom actions were featured in an episode during the third season of the Serial podcast, which focused on the criminal justice system in Cuyahoga County.

A Stationary Offense Draws Admonition

A press release from the New York Commission on Judicial Conduct describes a recent admonition

In May 2020, Judge Aronian completed two Character Reference Letters on behalf of his court clerk and her husband, who were his neighbors and were applying for unrestricted pistol licenses. Although he is a practicing attorney as well as a part time justice, he identified his occupation as “Judge” on each letter. After his court clerk’s application was denied by the Westchester County Court, Judge Aronian personally called the court to inquire about the appeals process. He then wrote a letter to the judge handling the matter, on court stationery identifying himself as a town justice. The appeal was denied.

In admonishing Judge Aronian, the Commission noted that when the judge “invoked his judicial status and used his judicial stationery to write to the County Court judge to advocate for reconsideration of the denial…[Judge Aronian] created the improper appearance that he expected special treatment and deference because of his status as a judge.”

Judge Aronian, who is an attorney, has been a Justice of the North Salem Town Court since 2016. His current term expires on December 31, 2023.

(Mike Frisch)